Industrial Relations Commission of New South Wales in Court Session CITATION : Re Association of Rugby League Professionals [2001] NSWIRComm 183 APPLICANT Andrew Gordon Musgrave, Deputy Industrial Registrar PARTIES : RESPONDENT Association of Rugby League Professionals FILE NUMBER: IRC 2994 of 2001 CORAM: Wright J President; Hungerford J; Boland J CATCHWORDS : Registered Organisations - Report by Industrial Registrar - Notice of motion to cancel the registration under industrial relations legislation of an industrial organisation of employees - Failure to comply with organisation's rules concerning election of officers - Failure to file auditor's report as to accounting records and other financial statements - Organisation defunct - Grounds for cancellation of registration - Consequences of cancellation - Order made cancelling registration. Industrial Arbitration Act 1940 (repealed) Industrial Relations Act 1991 (repealed) s 420 s 435 s 444(1) s 517(5) and (6) s 518(1) Sub-div 1 of Div 3 of Pt 3 of Ch 5 Sub-div 2 of Div 8 of Pt 3 of Ch 5 LEGISLATION CITED : Industrial Relations Act 1996 s 217 s 223 s 226 s 227 s 228 s 232 s 249 s 282 Pt 4 of Ch 5 Industrial Relations (General) Regulation 1996 cl 29 Industrial Relations Regulation 1992 (repealed) cl 64 Trade Union Act 1881 HEARING DATES: 08/10/2001 EXTEMPORE JUDGMENT DATE : 08/10/2001 APPLICANT Mr A G Musgrave Deputy Industrial Registrar LEGAL REPRESENTATIVES: RESPONDENT No appearance JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President HUNGERFORD J BOLAND J Friday, 10 August 2001 Matter No IRC 2994 of 2001 ASSOCIATION OF RUGBY LEAGUE PROFESSIONALS Reference by the Deputy Industrial Registrar to the Industrial Relations Commission of New South Wales in Court Session pursuant to s 249(1) of the Industrial Relations Act 1996, clause 29 of the Industrial Relations (General) Regulation 1996 and s 445 of the Industrial Relations Act 1991. JUDGMENT OF THE COURT (extempore) [2001] NSWIRComm 183 1 This is an application by notice of motion filed on 17 July 2001 by Andrew Gordon Musgrave, Deputy Industrial Registrar, for an order pursuant to s 227(1) of the Industrial Relations Act 1996 cancelling the registration of the Association of Rugby League Professionals as an industrial organisation of employees under the said Act. The application was made following a report by the applicant dated 1 May 2001 to the effect that the organisation had failed to comply with its rules concerning the election of officers and their terms of office in the manner there set out, contrary to the said Act. 2 The report was before Hungerford J for consideration on 7 June 2001 when Ms M Anastasi, Assistant Deputy Industrial Registrar, appeared for the applicant. There was no appearance for the organisation. Ms Anastasi sought, and was granted, leave as a person with sufficient interest in the matter of the organisation's registration under the Industrial Relations Act for the applicant to apply to the Court for the cancellation of the organisation's registration thereunder. His Honour thereupon made directions for a notice of motion with a supporting affidavit for the cancellation of the registration of the organisation to be filed and served by 17 July 2001; a return date for the hearing of the motion was fixed for today, 10 August 2001, at 10.00 am. A further direction was made for a notice to be published in a newspaper circulating throughout the State advising the organisation's alleged failure to so comply with its rules and the hearing details of the consequent application to cancel the registration of the organisation. 3 The motion specified the following grounds and reasons in support of the order sought. 1. That the said industrial organisation has contravened industrial relations legislation under s 226(a) of the Industrial Relations Act 1996 in that: a. Elections have not been conducted by the said industrial organisation in accordance with s 249 of the said Act and clause 29 of the Industrial Relations (General) Regulation 1996; and c. Accounting records and other financial statements have not been lodged with the Industrial Registrar pursuant to s 282 of the said Act. 2. That the said organisation is defunct. 3. Such other grounds and reasons as the Commission in Court Session thinks fit. 4 At the hearing today of the motion, which is now as required by the Industrial Relations Act to be before a Full Bench of the Court, Mr Musgrave appeared for the applicant. There was no appearance for the organisation. It should be pointed out that Mr Musgrave swore an affidavit on 18 May 2001 in which he deposed that the said report dated 1 May 2001 was served on the organisation by pre-paid post on 8 May 2001 at its registered office, Suite 3, 1st Floor, 118 Great North Road, Five Dock, but it was returned to the Court's Registry on 16 May 2001 marked "return to sender". The public notice advising the application and the hearing arrangements appeared in The Sydney Morning Herald on Monday 25 June 2001. The notice of motion and affidavit in support were served on the organisation at its registered office by pre-paid post but were returned to the Registry marked "unknown at this address". We are satisfied that all reasonable steps have been taken to inform the organisation of the present application and of today's hearing. 5 An affidavit sworn by Mr Musgrave on 17 July 2001 was read into evidence. It appears from the affidavit that the organisation was first registered on or about 28 November 1980 under the Trade Union Act 1881 and subsequently became an industrial union of employees under the Industrial Arbitration Act 1940. On the enactment of the Industrial Relations Act 1991, effective on 31 March 1992, it became registered as an industrial organisation of employees under ss 420 and 435 thereof. Pursuant to s 223 of the present Industrial Relations Act, which commenced on 2 September 1996 and repealed the 1991 Act, the organisation, because it was registered as such under the 1991 Act, was taken to be an industrial organisation of employees registered under Ch 5 of the 1996 Act. It was, therefore, a "State organisation" in terms of s 217 of the 1996 Act and to which the provisions of Pt 4 - Regulation of State industrial organisations (ss 233-290A), of Ch 5 thereof applied. 6 Section 249 of the 1996 Act provides that regulations may make provision for or with respect to the election of officers of State organisations, such as the subject organisation. The Industrial Relations (General) Regulation 1996 in cl 29(2) makes applicable ss 442 to 451, inclusive, of the 1991 Act to State organisations as regulations made under s 249 of the 1996 Act; s 444(1) therein provides : When an election is required to be held, an organisation must apply in writing to the Industrial Registrar requesting that the Industrial Registrar arrange for the conduct of an election for an office in the organisation in accordance with the rules of the organisation. 7 Rule 13 of the registered rules of the organisation provides, in effect, that elections for all offices in the said organisation were to be held immediately following the Annual Conference in 1996 and every two years thereafter and such elections were to be held in accordance with the provisions of the 1991 Act. 8 The organisation, as Mr Musgrave deposed, has not so applied in writing to the Industrial Registrar requesting the Industrial Registrar arrange for the conduct of an election for an office in the organisation in accordance with its rules contrary to s 444(1) of the 1991 Act. This failure relates directly to, and in our view makes out, ground 1(a) of the grounds in support of the order sought in the motion. 9 Section 282(1) of the 1996 Act enables regulations to be made making provision for or with respect to the accounts and audit of industrial organisations. As no such regulations have been made then s 282(3) operates by making applicable the provisions in those respects of Sub-div 2 of Div 8 of Pt 3 of Ch 5 of the 1991 Act, namely, ss 507 to 524, inclusive. Section 518(1) therein provides: 518(1) An organisation must, within the period prescribed by the regulations after the meeting referred to in section 517(5) or (6) (whichever is applicable) lodge with the Industrial Registrar: (a) copies of the report, accounts and other statements presented to the meeting; and (b) a certificate by the secretary, or other officer prescribed by the regulations, of the organisation that the documents lodged are copies of the documents presented to the meeting. 10 The "period prescribed by the regulations" as referred to in s 518(1) is 14 days after the relevant meeting as specified in cl 64 of the Industrial Relations Regulation 1992. The "meeting" as referred to in s 518(1) and cl 64 is "a general meeting of the members of the organisation or a meeting of the committee of management of the organisation": see s 517(5) and (6) of the 1991 Act. 11 Mr Musgrave deposed he had perused the records of the Registry and found that the organisation had not lodged copies of the report of the auditor as to the accounting records of the organisation in relation to a financial year and accounts and other financial statements; neither had he found a certificate by the secretary or other officer of the organisation of financial documents being presented to a meeting of the organisation. Those failures make out, in our view, ground 1(b) of the grounds in support of the motion as being contrary to the requirements in those respects of s 282 of the 1996 Act. 12 In general terms, Mr Musgrave deposed, as he said, "that all correspondence from the Industrial Registrar sent to that address (the organisation's registered office at Five Dock) in 2001 has been returned to the office of the Industrial Registrar marked 'unknown at this address'". Further, in general terms, we note that the organisation made no appearance at this hearing and otherwise has not communicated with the Registry about this matter, notwithstanding the public notice appearing in The Sydney Morning Herald on 25 June 2001. In our view, those aspects make out ground 2 of the grounds in support of the motion that the organisation is defunct. 13 Section 226 - Grounds on which registration may be cancelled, of the 1996 Act relevantly provides in pars (a) and (g), as follows: (a) that the organisation...has...contravened the industrial relations legislation ... , (g) that the organisation is defunct. 14 Section 227 - Cancellation of registration of industrial organisation, of the 1996 Act provides: (1) The Commission may cancel the registration of an industrial organisation if the Commission considers that a ground for cancellation has been established. (2) However, the Commission is not to cancel the registration of an industrial organisation on a ground referred to in section 226(a)-(c) unless the Commission considers that it is appropriate to cancel the registration in the circumstances because of the gravity of the case. 15 As earlier stated, we are satisfied from the affidavit evidence of Mr Musgrave that the grounds for cancellation of the registration of the subject organisation have been established. Specifically, we are satisfied the organisation is indeed defunct as such in terms of par (g) of s 226; the circumstances of the identified failures by it to comply with the industrial relations legislation, namely, s 444(1) of the 1991 Act in respect of elections for an office and s 282 of the 1996 Act as to accounting records and other financial statements, are sufficient in the circumstances to justify cancellation even having in mind the caution expressed in s 227(2) of the 1996 Act. 16 Accordingly, the Court makes orders in these terms: 1. The registration of the Association of Rugby League Professionals as an industrial organisation of employees under the Industrial Relations Act 1996 is hereby cancelled. 2. The said cancellation shall take effect on 10 August 2001. 17 In doing so, attention is drawn to s 228 - Consequences of cancellation, of the 1996 Act. Also, the Court directs that the orders thus made shall be recorded by the Industrial Registrar under s 232 - Cancellation or other order to be recorded, of the 1996 Act and that a copy of this decision and of the sealed orders be served on the organisation by the Industrial Registrar within 14 days after today. ______________________ 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.