Industrial Court of New South Wales CITATION: Printing and Allied Trades Employers' Association of New South Wales, Re [2008] NSWIRComm 96 PARTIES: APPLICANT: Printing and Allied Trades Employers' Association of New South Wales FILE NUMBER(S): IRC 249 of 2008 CORAM: Boland J President CATCHWORDS: Registered organisation - Organisation of employers - Printing industry - Application for declaration of invalidity - Two alleged invalidities - Failure to conduct elections in accordance with registered Constitution - Failure to notify Industrial Registrar of elections - Finding of invalidity jurisdictional requirement - Invalidities found - Discretion of Court to make orders - Invalidities due to oversight and inadvertence - Adequate notice given - Court satisfied no substantial injustice done to organisation, members, creditors or persons dealing with organisation if orders made - Orders made. Industrial Arbitration Act 1940 LEGISLATION CITED: Industrial Relations Act 1996 ss 288, 288(1)(b), 288(5)(1) Workplace Relations Act 1996 (Cth) Liquor, Hospitality and Miscellaneous Union, New South Wales Branch, Re [2006] NSWIRComm 244 CASES CITED: Newcastle Master Builders' Association, Re [2007] NSWIRComm 57 Seamen's Union of Australia New South Wales Branch, Re (2001) 107 IR 90 HEARING DATES: 21 April 2008 DATE OF JUDGMENT: 9 May 2008 APPLICANT: LEGAL REPRESENTATIVES: Mr C Watson Employee Relations Advisor Printing Industries Association of Australia JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J, President Friday 9 May 2008 Matter No IRC 249 of 2008 RE PRINTING AND ALLIED TRADES EMPLOYERS' ASSOCIATION OF NEW SOUTH WALES Application by Printing and Allied Trades Employers' Association of New South Wales for a determination of the question of an invalidity under section 288 of the Industrial Relations Act 1996 JUDGMENT [2008] NSWIRComm 96 1 The Printing and Allied Trades Employers' Association of New South Wales ("PATEA") ('the applicant'), an industrial organisation of employers registered under the Industrial Relations Act 1996, seeks a determination under s 288 of the Act as to whether there has been an invalidity in relation to elections. If any invalidity is found, the applicant seeks the following orders: (a) the Applicant seek Orders to rectify or cause to be rectified the invalidities found to have occurred pursuant to section 288 of the Industrial Relations Act (1996) (NSW) (the " Act "); (b) the Applicant seek consequential Orders to negative, modify or cause to be modified the consequences in law of the invalidities found to have occurred by way of determination under section 288 of the Act; and (c) the Applicants seek Orders to validate all acts, matters or things rendered invalid by or because of the invalidities found to exist pursuant to section 288 of the Act. 2 Section 288 of the Act provides: 288 Commission may make orders in relation to consequences of invalidity (1) An organisation, a member of an organisation or any other person having a sufficient interest in relation to an organisation may apply to the Commission for the determination of the question whether an invalidity has occurred in: (a) the management or administration of the organisation, or (b) an election or appointment in the organisation, or (c) the making or alteration of the rules of the organisation. (2) On an application under subsection (1), the Commission may make such determination as it considers appropriate. (3) If, in a proceeding under subsection (1), the Commission determines that an invalidity of a kind referred to in that subsection has occurred, the Commission may make such order as it considers appropriate: (a) to rectify the invalidity or cause it to be rectified, or (b) to negative, modify or cause to be modified the consequences in law of the invalidity, or (c) to validate any act, matter or thing rendered invalid by or because of the invalidity. (4) Where an order is made under subsection (3), the Commission may give such ancillary or consequential directions as it considers appropriate. (5) The Commission must not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to: (a) the organisation, or (b) any member or creditor of the organisation, or (c) any person having dealings with the organisation. (6) The Commission may determine: (a) what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section, and (b) whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper. (7) This section applies: (a) to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section), and (b) to an invalidity occurring in relation to an association before it became an organisation. 3 Directions were made on the 7 March 2008 for the applicant to publish a notice in The Sydney Morning Herald, no later than two weeks prior to the hearing date of 21 April 2008, to notify any interested parties of the application. On 19 March 2008, the notice appeared in The Sydney Morning Herald as follows: Notice of Application for Orders pursuant to section 288 of the Industrial Relations Act 1996 (NSW) by the Printing and Allied Trades Employers Association of New South Wales (" PATEA ") in Matter No IRC 249 of 2008. Notice is hereby given that on 21 April 2008, the PATEA will seek Orders from the Industrial Relations Commission of New South Wales validating the election of its Officeholders and all actions taken by said Officeholders since 15 December 1995. The PATEA seeks these Orders due to administrative inadvertence that resulted in elections for Officeholders being undertaken pursuant to the rules of the federal organisation, the Printing Industries Association of Australia. The PATEA Application is listed for hearing before the Honourable Justice Boland on 21 April 2008 at 10.00 am in Court 2.4, 47 Bridge Street, Sydney . All persons who claim an interest in the proceedings and wish to be heard on the Application should contact the Industrial Registrar on (02) 9258 0866 to advise their intention. Persons may also contact Mr C Watson of the Printing Industries Association of Australia on 02 8789 7300 should they so wish. 4 No person or organisation responded to the notice and the matter proceeded to hearing on 21 April 2008. 5 The applicant sought to rely on the application filed on 26 February 2008, the three annexures to the application, and the affidavit of Mr Robert Fuller sworn on 21 February 2008. Mr Fuller is employed by the Printing Industries Association of Australia as both the National Operations Manager and as the NSW General Manager. 6 Mr C Watson, who appeared for the applicant, explained the history of the organisation. In 1971 the applicant merged with other state printing organisations, to form one federal organisation, currently known as the Printing Industries Association of Australia ('PIAA'). PIAA was formerly known as the Printing and Allied Trades Employers' Federation of Australia. PIAA is an industrial organisation of employers registered under the Workplace Relations Act 1996 (Cth). At the time of the mergers, the relevant state legislation, the Industrial Arbitration Act 1940, prevented the registration of a state branch of a federal organisation. Consequently, the applicant continued as a separately registered organisation with its own Constitution. At the same time, the PIAA had a New South Wales Region Branch. 7 In its application, the applicant identified what amounted to two invalidities: Since at least December 1995 the PATEA has failed to hold elections for office bearers pursuant to the terms of its Constitution, specifically Rule 44. However, since 1995 valid elections have been held for office bearers of the NSW State Region of PIAA, pursuant to the terms of the PIAA Rules, specifically Rule 88. Effectively, during the period from 15 December 1995 until the date of this application, PATEA has been administered by the NSW PIAA Regional Council of office bearers, all of whom are or were elected to such positions in a fair, detailed and transparent process pursuant to the terms of the PIAA Rules. Further, Rule 44 of the PATEA Constitution allows for persons elected to an office in the NSW Region of PIAA to be validly elected to the corresponding office of the PATEA. However, the required approval of the Industrial Registrar does not appear to have been sought so that such an outcome might occur. The results of the PIAA NSW Region elections appear to have been unmindfully accepted as concurrently applying to the corresponding office bearer positions within PATEA. 8 In explaining why the invalidities occurred, Mr Fuller deposed in his affidavit that: 1. Prior to my commencement as the NSW General Manager of PIAA the position had been filled by a succession of short term Managers. Additionally, throughout the past twelve years there had been numerous periods, of up to approximately six months, where the position had been vacant. 2. Having reviewed and considered material and historical files, elections were appropriately held for office bearers of PIAA NSW Region, whereby the results of those elections were incorrectly accepted to concurrently apply to the PATEA Council. 3. Having reviewed and considered material and historical files associated with this matter I have not seen anything that shows the invalidities were a result of a deliberate act by those persons responsible for the invalidities occurring. 9 Mr Watson submitted that a turnover of General Managers in the organisation may have weakened the depth of knowledge and understanding of the applicant's own Constitution and electoral processes and that there was no reason to suggest the invalidities were a result of a deliberate or deceitful act by any individual or group. 10 Mr Fuller's affidavit set out the steps he took once he became aware of the invalidities: 1. In or about mid 2007 I became aware of inconsistencies and invalidities relating to elections for Council members of PATEA. At this time I received from Mr Jeff Foley, of the NSW Industrial Relations Commission Registry registered organisations section, correspondence relating to a return for PATEA. 2. This correspondence made me question the standing of PATEA as a separately registered industrial organisation and lead me to realize a history of invalidities relating to PATEA elections. 3. Initially, I sought to clarify the extent of those invalidities. I sought advice from the PIAA Chief Financial Officer, Mr Geoffrey Ball, being a person with longevity within the organisation as well as the person who facilitates the completion of financial returns. Mr Ball supplied me with background and historical material relating to PATEA elections. 4. In or about late 2007 I sought advice and information from the Employee Relations department of PIAA, part of the PIAA National Office. The Employee Relations department provided me with advice and documentation relating to PATEA, its Constitution and its elections processes. 5. Having considered the background material, I then contacted Mr Jeff Foley and Mr Greg Kirkby of the registered organisations area within the NSW Industrial Relations Commission. This initial contact was by telephone and occurred in or about October 2007. I sought clarification from Mr Foley and Mr Kirkby in relation to the circumstances and extent of the invalidities. Additionally, I sought clarification as to the available options and procedures for rectifying the invalidity issues as well as how to move forward in a compliant manner. 6. Subsequently, I prepared a briefing paper for the National CEO of PIAA and the Councils of PIAA (NSW Region) and PATEA. This briefing paper explained the circumstances leading to the non-compliance with the PATEA Constitution and the Industrial Relations Act 1996 (NSW). Further, the briefing paper outlined the various options that were available for the PATEA Council to consider, so as to rectify the election related invalidities. 7. On 15 November 2007, PIAA Employee Relations Officer, Mr Charles Watson and I held a meeting with Mr Foley and Mr Kirkby of the NSW Industrial Relations Commission registered organisations section. The purpose of this meeting was to discuss how best to give effect to any decision the PATEA Council would make in relation to overcoming the invalidities. 8. During a quarterly meeting of the PIAA NSW Regional Council and PATEA Council on or about 21 November 2007, the Council resolved to rectify the invalidities and continue with the registration of PATEA [RF1-2]. 9. Following this resolution, PATEA now make an Application to the NSW Industrial Relations Commission to determine a question of invalidities and seeking consequential orders pursuant to section 288 of the Industrial Relations Act 1996 (NSW). 10. In addition to the Application, PATEA has undertaken to redraft the appropriate clauses of the PATEA Constitution so as to avoid future inconsistencies in the elections for office bearers for the PATEA Council. 11 Mr Fuller also deposed that he had been advised by PIAA's Chief Financial Officer, Mr Geoffrey Ball, that the applicant had no creditors and had effectively been a dormant trading entity since the registration of the PIAA. 12 Rule 44 of PATEA's Constitution provides for the election of office bearers: 44. Elections (a) Subject to this rule, persons elected to an office in the New South Wales Region of PATEFA shall be taken to be validly elected to the corresponding office in the Association. (b) Except as specifically approved by the Industrial Registrar, the Honorary Secretary - Treasurer shall provide the Industrial Registrar with a statutory declaration stating, if it be the case that the membership of the New South Wales region of PATEFA and the membership of the Association is identical together with a certified copy of the registered rules of PATEFA. (c) Subject to the Industrial Registrar indicating his or her satisfaction that (i) membership of the New South Wales region of PATEFA and of this Association is identical and (ii) that the rules of PATEFA relating to the election of officers comply substantially with the requirements relating to the election of officers under the Industrial Relations Act 1991 the Honorary Secretary-Treasurer shall invite in writing all candidates for an office within the New South Wales Region of PATEFA to hold the corresponding office, if elected, in the Association. Any person who accepts this invitation and is elected to an office in the New South Wales Region of PATEFA shall hold the corresponding office of the Association. (d) In the event that the Registrar is not satisfied as to the matters in sub-rule (c) above, the succeeding subclauses of this rule shall have application. Except in that circumstance, they shall have no application. (e) Elections required under these rules shall be conducted in accordance with the Industrial Relations Act 1991. (f) If a ballot is required in the conduct of an election it shall be by secret postal ballot. (g) The system of voting in an election shall be first past the post. (h) A candidate in an election must be nominated for office by two financial members and must agree to accept the nomination. A person may not be nominated for more than one office to be filled in the course of one election. (i) For the purpose of this clause: "PATEFA" means The Printing and Allied Trades Employers' Federation of Australia, an organisation of employers registered under the Industrial Relations Act 1988 (C'th) "New South Wales Region" has the same meaning as under the registered rules of PATEFA. 13 Rule 88 of PIAA's Rules contains extensive provisions for the conduct of elections, but it is not necessary to reproduce that Rule here. Consideration 14 In determining an application such as this, the Court must first find, as a jurisdictional prerequisite, that there has been an invalidity: Re Seamens' Union of Australia New South Wales Branch (2001) 107 IR 90 at [25] and Re Liquor, Hospitality and Miscellaneous Union, New South Wales Branch [2006] NSWIRComm 244 at [13]. 15 The applicant conceded that invalidities had occurred in two ways. First, since at least December 2005 the applicant had failed to hold elections for office bearers pursuant to the terms of its Constitution and in particular, Rule 44. I find that this constitutes an invalidity under s 288(1)(b) in that the applicant did not conduct elections in accordance with its Constitution. 16 Secondly, whilst Rule 44 of PATEA's Constitution allowed for persons elected to an office in the NSW Region of PIAA to be validly elected to the corresponding office of the PATEA, the required approval of the Industrial Registrar was not sought so that such an outcome might occur. I find that this also constitutes an invalidity under s 288(1)(b). 17 Upon the finding of an invalidity the Court must then determine whether it should exercise its discretion to make orders under ss 288(3) and (4): Re Liquor, Hospitality and Miscellaneous Union, New South Wales Branch at [13]. 18 I accept the evidence of Mr Fuller in relation to the applicant's high turnover of General Managers, and the submission by Mr Watson, that this resulted in a less thorough understanding of the applicant's Constitution and its requirements. I also accept that PATEA has been, for the relevant period, administered by the NSW PIAA Regional Council of office bearers, all of whom are or were elected to such positions in a fair, detailed and transparent process pursuant to the terms of the PIAA Rules. Further, it is accepted that failure of those responsible to adhere to the PATEA Constitution appears to have been as a result of mere oversight and inadvertence and not for any improper purpose. There was no evidence that the applicant or its officers conducted themselves other than in a bona fide manner. 19 Finally, the Court must satisfy itself that there would be no substantial injustice to the organisation, any member or creditor of the organisation, or any person having dealings with the organisation: s 288(5)(1); Re Liquor, Hospitality and Miscellaneous Union, New South Wales Branch; Re Newcastle Master Builders' Association [2007] NSWIRComm 57. 20 In relation to the organisation, I accept that there would be no substantial injustice to the applicant, any member or creditor of the applicant, or any person having dealings with the applicant if I were to make the orders sought. Any such orders would enable the applicant to function and operate effectively and legally: Re Liquor, Hospitality and Miscellaneous Union, New South Wales Branch; Re Newcastle Master Builders' Association. 21 Finally, I am satisfied that the applicant has given adequate notice of the orders it is seeking, both to its members and to any person that may have dealings with the organisation, through its publication in The Sydney Morning Herald on 19 March 2008. No person has notified either the Industrial Registrar, the applicant itself, nor entered an appearance in the proceedings. Orders 22 The Court makes the following orders: (1) The Court finds that the following invalidities have occurred: (a) that between 15 December 1995 and the 26 February 2008, the Printing and Allied Trades Employers' Association of New South Wales failed to conduct elections for office bearers in accordance with its registered Constitution; (b) that where elections for office bearers have been held, the Printing and Allied Trades Employers' Association of New South Wales has failed to obtain the Industrial Registrar's approval to hold such elections. (2) That upon the basis of these invalidities, the Court, being satisfied that these orders do not cause substantial injustice to the Printing and Allied Trades Employers' Association of New South Wales, its members, creditors or persons having dealings with it, orders: (a) that all elections for office bearers of the Printing and Allied Trades Employers' Association of New South Wales held between 15 December 1995 and 26 February 2008, the results of those elections, and all office bearers elected in those elections are validated; (b) that all decisions of office bearers of the Printing and Allied Trades Employers' Association of New South Wales, elected between 15 December 1995 and 26 February 2008, are validated; (c) that the failure to obtain the Industrial Registrar's approval to hold elections for the positions of office bearers of the Printing and Allied Trades Employers' Association of New South Wales and any consequences of that failure, is negatived and rectified. __________________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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