Industrial Relations Commission of New South Wales CITATION : The Federated Brick, Tile and Pottery Industrial Union of Australia, NSW Branch Re: Application for Validation Orders pursuant to section 288 of the Industrial Relations Act 1996 [2003] NSWIRComm 78 PARTIES : APPLICANT: The Federated Brick, Tile and Pottery Industrial Union of Australia, NSW Branch. FILE NUMBER: IRC 178 of 2003 CORAM: Staunton J CATCHWORDS : Application - validation orders sought pursuant to section 288 of the Industrial Relations Act 1996 - invalidity occurring in the management and administration of the applicant union - election of officers and performance of duties and functions not in accordance with registered rules - interrelationship between unions registered under New South Wales legislation and federal legislation - findings and orders made. LEGISLATION CITED : Industrial Relations Act 1991 (NSW) Industrial Relations Act 1996 (NSW) s 288 HEARING DATES: 03/07/2003 EXTEMPORE JUDGMENT DATE : 03/07/2003 APPLICANT: The Federated Brick, Tile and Pottery Industrial Union of Australia, New South Wales Branch. SOLICITORS: LEGAL REPRESENTATIVES: Geoffrey Edwards & Co (Mr M Carrick) JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: STAUNTON J DATE: 7 March 2003 Matter No. IRC 178 of 2003 THE FEDERATED BRICK, TILE AND POTTERY INDUSTRIAL UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH Application for Validation Orders pursuant to section 288 of the Industrial Relations Act 1996 EXTEMPORE DECISION [2003] NSWIRComm 78 1 This matter concerns an application by the Federated Brick, Tile and Pottery Industrial Union of Australia, New South Wales Branch (FBTPU), an industrial organisation of employees registered under the Industrial Relations Act 1996 (NSW) (the Act) for orders pursuant to s 288 of that Act, in relation to the consequences of an alleged invalidity occurring in the management and administration of the applicant organisation. 2 The said invalidity involves the election of officers of the applicant contrary to the strict technical requirements of those rules and the performance by them of functions as if they were duly authorised. Orders are sought to rectify the position so as to ensure the valid regular management and administration of the applicant as an organisation. 3 The application is supported by three affidavits. Two affidavits are from Mr Trevor Melksham, currently the Branch Secretary of the Clay and Ceramics Industry Divisional Branch of the Construction, Forestry, Mining and Energy Union (CFMEU), the federally registered organisation of employees and counterpart body to the applicant union before me. The affidavits of Mr Melksham were sworn on 13 January 2003 and 3 March 2003. The third affidavit is from Mr Alec Sawtschuk sworn on 13 January 2003 who, from 1984 until August 1998 when he retired from full time office, was the Secretary of the applicant union. Mr Sawtschuk remains involved in a voluntary capacity in the affairs of the applicant union. 4 The nature of the invalidity that has occurred in the management of the applicant union is particularised in paragraph [F] of the application filed on 13 January 2003. 5 Those particulars disclose that the applicant union, a relevantly registered industrial union, was required to alter its rules to comply with the provisions of the Industrial Relations Act 1991 (NSW). As a consequence, new rules were approved by the Industrial Registrar and became effective as and from 6 September 1996. 6 Prior to the applicant union's rules being approved, the federal counterpart organisation, the FBTPU had, in September 1995, entered into an agreement to amalgamate with another federally registered organisation, namely, the CFMEU. 7 In anticipation of the federal amalgamation, the applicant union included in its new proposed rules, provisions in Rule 19A which were specifically drafted to facilitate one set of elections rather than two separate sets of elections, one being for the State registered entity and the other for the New South Wales branch of the federal entity. 8 In late 1997 the Australian Electoral Commission conducted an election for office bearers in the FBTPU of Australia, New South Wales Branch, that organisation being the New South Wales branch of the federal body. The office bearers duly elected in that election were entitled to hold office from January 1998 in accordance with the federal rules of that organisation. 9 No application was made by the applicant union to the Industrial Registrar of New South Wales for an election to be held for office bearers in the state union. 10 On 31 May 1998 federal amalgamation between the federal CFMEU and FBTPU took effect. The amalgamated rules of the new federal entity contained provisions of a transitional nature relating to office bearers and terms of office calculated to bring into line the terms of office of the office bearers of the two amalgamating federal unions. 11 In September 2000 the Australian Electoral Commission conducted a further election of office bearers in the federal CFMEU Clay and Ceramics Industry Divisional Branch, and declared elected for terms commencing January 2001 Mr Trevor Melksham (as the Branch Secretary), Mr Alec Sawtschuk (as President), Mr Shane Stiff (as the Assistant Branch Secretary, New South Wales), and Mr Petter Hodder (as a Committee of Management member). 12 Again, no application was made at that time to the Industrial Registrar of New South Wales for an election to be conducted for office bearers in the state union, the applicant union before me. 13 As a consequence of the federal amalgamation referred to, a number of significant changes occurred within both the federal and state entities, including the movement of a number of office bearers from full time positions to honorary positions, and the relocation of the federal Secretary, Mr Trevor Melksham from Melbourne to Sydney. His task was to represent on a full time basis, the industrial interests of members of both the Federal body and the State body resident in New South Wales. Mr Melksham relocated to Sydney in August 1998 when Mr Sawtschuk retired his full time role with the applicant union. 14 In his affidavit of 13 January 2003, Mr Melksham deposed that from August 1998 he has: (1) Effectively carried out the functions of a full time official of the applicant union, although he has not been elected to an office in a separate election conducted under the rules of the applicant union; (2) Negotiated on behalf of the applicant union's members in New South Wales employed in the industry in relation to wages and conditions that are governed by awards made by the Industrial Relations Commission of New South Wales and pursuant to enterprise agreements which have been registered and approved by the Industrial Relations Commission of New South Wales; (3) Attended work sites at which the applicant union's members are employed and has engaged in negotiations on their behalf with their employers; (4) Notified industrial disputes to the Industrial Relations Commission of New South Wales and attended as an advocate in relation to such disputes. 15 Mr Melksham further deposed that from 1998 when he took over all those functions from Mr Alec Sawtschuk, it was his belief that, as a consequence of the amalgamation between the federal bodies, the applicant union would function as a component part of the amalgamated body. 16 As Mr Melksham stated, and I have no reason to dispute him, he had not previously had any need to develop an understanding of the interrelationship between unions registered under New South Wales legislation and those registered under federal legislation. As a consequence of that, he states, he made an error in lodging returns in response to notices from the Industrial Registry of New South Wales which were returns prepared by auditors in relation to the federal body. Not surprisingly, the Industrial Registry of New South Wales did not accept the returns for lodgement, as they were clearly inappropriate. 17 Overall the substance of the application before me is to validate and regularise: (1) All decisions taken in relation to the management and administration of the applicant union by those persons purporting to occupy the positions of office bearers or executive members of the applicant union between 6 September 1996 and the date on which the orders sought are made and authorised; (2) To regularise the office bearers and members of the committee of management of the union until a properly conducted ballot occurs under the auspices of the Industrial Registrar of New South Wales and the State Electoral Commissioner; (3) Consequential administrative and management actions to be undertaken to properly regularise the affairs of the applicant union. 18 Those decisions and actions needed to be taken are detailed in the application that accompanies Mr Melksham's affidavit. 19 There are no respondents or other persons or organisations who entered any appearance by way of objection or otherwise to the application before me. 20 In order to satisfy myself that all members of the applicant union were aware of the application before me, I gave a direction pursuant to the provisions of s 288(6) on 11 February 2003 that a Notice be circulated to all members by way of a newsletter informing them of the application before me, its nature and effect and that they could obtain further information about the matter by contacting the Deputy Industrial Registrar on the number provided. That Notice appeared in Newsletter No. 1 of 2003 of the applicant union and is annexure A to Mr Melksham's affidavit filed on 4 March 2003. 21 As part of that Newsletter, all members were also advised of this morning's hearing. There are no appearances from any member or other persons before me today, apart from those representing the applicant union. 22 Having regard to the details contained in Mr Melksham's affidavits and those particulars that I have placed on the record, I am satisfied there are no creditors or persons likely to have dealings with the applicant union who would be adversely affected by the orders I have been asked to make. 23 Accordingly, in this matter I make the following findings: 1. An invalidity has occurred in the management and administration of the applicant from 6 September 1996 to date relating to the election of officers and the purported performance by them of duties and functions as such, notwithstanding that they were not elected in accordance with the registered rules of the applicant. 2. It is appropriate in the circumstances to rectify the invalidity and to validate any act, matter or thing rendered invalid by the said invalidity. 3. The appropriate rectification and consequential orders in the terms sought would not, I am satisfied, do substantial injustice to the applicant organisation, any member or creditor thereof, or any person having dealings with the applicant union. 24 Accordingly I make the orders sought pursuant to s 288(3) of the Act in the terms sought by the applicant. 25 I direct that the applicant file in the Industrial Registry within 72 hours a settled document containing return of the orders thus made. The orders will then be formally entered. ----------------- 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.