Supreme Court New South Wales Medium Neutral Citation: Ex parte Institute of Senior Educational Administrators [2022] NSWSC 1549 Hearing dates: On the papers Decision date: 11 November 2022 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to the second plaintiff, pursuant to s 225(1) of the Industrial Relations Act 1996 (NSW), to join in the first plaintiff's application for the cancellation of its registration. (2) Cancel the registration of the first plaintiff pursuant to s 227(1) of the Industrial Relations Act 1996 (NSW). Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial organisations — ex parte application for cancellation — application granted Legislation Cited: Industrial Relations Act 1996 (NSW), ss 225, 226, 227, 228, Category: Principal judgment Parties: Institute of Senior Educational Administrators (ABN 99 466 824 594) (First Plaintiff) Robyn Louise Bale (Second Plaintiff) Representation: Counsel: N/A (Plaintiffs) Solicitors: WilliamsonBarwick (Plaintiffs) File Number(s): 2022/309683 JUDGMENT Introduction 1. By summons filed on 17 October 2022, the Institute of Senior Educational Administrators, the first plaintiff (the Institute), and Robyn Bale, the second plaintiff, applied for an order that the Institute's registration as an industrial organisation be cancelled pursuant to s 227(1) of the Industrial Relations Act 1996 (NSW) (the Act). An amended summons was filed on 3 November 2022, which sought the same relief. 2. Ms Bale seeks leave pursuant to s 225(1) of the Act to join in the Institute's application for the cancellation of its registration. In the alternative, she seeks leave to apply for the cancellation of the Institute's registration. Relevant statutory provisions 1. Division 2 of Part 3 of Chapter 5 of the Act, which comprises ss 225-232, makes provision for the cancellation of the registration of industrial organisations. Section 225 relevantly provides that an industrial organisation may apply to this Court for the cancellation of its own registration. With the leave of this Court, a "person who has sufficient interest in the matter", may also apply for the cancellation of the registration of an industrial organisation. 2. Section 226 lists the grounds on which the registration of an industrial organisation may be cancelled. Of present relevance, these include: "… (e) that the industrial organisation is no longer effectively representative of the members who are employees or employers, as the case requires, (f) that the organisation has applied for the cancellation of its own registration, …" 1. Section 227(1) of the Act relevantly provides that this Court may cancel the registration of an industrial organisation if it considers that a ground for cancellation has been established. 2. Section 228(1) provides that, on cancellation of registration of an industrial organisation, the organisation ceases to be an industrial organisation for the purposes of the Act. However, cancellation does not relieve the industrial organisation of any liability incurred before the cancellation: s 228(2). The relevant facts 1. The plaintiffs relied on two affidavits of Ms Bale, dated 14 October 2022 and 3 November 2022 respectively. The factual matters set out below are taken from these affidavits. 2. The Institute was registered on 10 February 2003. Its role was "to provide industrial coverage" for Chief Education Officers (CEOs) and teaching service positions equal to or higher than CEOs. The applicable award for CEOs is the Crown Employees (CEOs Department of Education) Salaries and Conditions Award 2021 (the Award). 3. The Institute's membership has declined since its registration, as set out in the following table (derived from Ms Bale's evidence): Year Number of members of the Institute Number of CEOs (approx.) 2003 66 90 2014 45 2022 6 100 1. The Institute's rules, which were registered at about the time of its registration, provide for a State Council to be comprised of the President, Vice President, Treasurer, Secretary and three Ordinary Members. Presently, the only positions occupied are those of Vice President (Ms Bale) and the Secretary (Elsa Lat). All other positions for the State Council are vacant as there were no candidates in the last election on 16 December 2021. Thus, Ms Bale, who was declared Vice President on 16 December 2021, is the most senior member of the Executive of the Institute. Because no quorum can be achieved, it has been necessary for Ms Bale to rely on the emergency powers conferred by r 10.2 of the Rules to conduct the Institute's business. 2. Ms Bale has consulted with all six of the Institute's members before making this application. Her affidavit is largely derived from her review of the Institute's records as well as her understanding of the views of the Institute's members. 3. Since 2005, the Institute has neither prompted any industrial action, nor has it notified the Industrial Relations Commission (the Commission) of any industrial dispute within the meaning of s 6 of the Act. When the Commission varied the Award in about January 2021, CEOs received a salary increase of 0.3%, whereas other teaching service positions (which were covered by the Australian Education Union New South Wales Teachers Federation Branch (the Teachers Federation)) had their salaries increased by 2.28%. Those CEOs who were employed within the NSW Educational Standards Authority, which were covered by the Teachers Federation, received a 2.27% increase. 4. According to Ms Bale, this disparity led the Institute's members to believe that the Institute's inaction was to their detriment and that the Institute was incapable of advancing their members' interests. Ms Bale compared the Institute unfavourably with the Teachers Federation which commenced the "More Than Thanks Campaign". The application by the Teachers Federation was heard by the Commission on 12 October 2022. The decision, which was handed down on 11 November 2022, resulted in improved conditions for teachers and related employees: Application for Crown Employees (Teachers in Schools and Related Employees) and Conditions Award 2022 [2022] NSWIRComm 1099. 5. Ms Bale has consulted with the Teachers Federation, which has indicated that it is prepared to provide coverage for the Institute's members. On 25 October 2022, a Joint Communique was signed by the Institute and the Teachers Federation setting out the agreed arrangements. 6. Ms Bale has caused a notice of intention to apply to this Court for cancellation of the registration of the Institute to be published in the Sydney Morning Herald. The notice was published on 19 October 2022. The Department of Education was also notified but indicated that it did not seek to intervene in these proceedings. Ms Bale also notified each of the Institute's members of the proceedings by email on 26 October 2022. She has not received any response. 7. The Institute has assets valued at $94,093.61 as at 30 September 2022. As far as Ms Bale is aware, it has no liabilities other than for legal costs associated with these proceedings. If the Institute's registration is cancelled, its Executive intends to distribute surplus assets in accordance with the Rules. A report of the Institute's auditor dated 1 November 2022 annexes the Institute's financial statements as of 31 October 2022. Consideration 1. I am persuaded that Ms Bale is a person who has a sufficient interest in the matter within the meaning of s 225(1) of the Act. Because the Institute does not have a State Council (by reason of vacancies in various positions), I am persuaded that it is appropriate to grant leave to Ms Bale to join in the Institute's application for the cancellation of its registration. 2. The evidence adduced by the plaintiffs establishes that the Institute "is no longer effectively representative of the members who are employees" within the meaning of s 226(e) of the Act. Further, as the Institute is a plaintiff, the ground in s 226(f) has also been made out as the Institute has applied for the cancellation of its own registration. 3. The system of industrial relations in New South Wales is based on conciliation and arbitration of industrial disputes. In order for this system to work in the interests of all, it is necessary that industrial organisations have sufficient membership to represent the sectors covered by them and that executive positions are filled by those who are in a position to advance the interests of the members. The Institute is no longer capable of advancing the interests of its members, who would be better served by being members of the Teachers Federation. 4. I am satisfied that the order sought in paragraph 1 of the amended summons ought be made. Orders 1. For the reasons given above, I make the following orders: 1. Grant leave to the second plaintiff, pursuant to s 225(1) of the Industrial Relations Act 1996 (NSW), to join in the first plaintiff's application for the cancellation of its registration. 2. Cancel the registration of the first plaintiff pursuant to s 227(1) of the Industrial Relations Act 1996 (NSW). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2022