Industrial Relations Commission of New South Wales CITATION: Application by Transport Workers' Union of New South Wales for a determination of the question of an invalidity under s 288 of the Industrial Relations Act 1996 [2008] NSWIRComm 35 PARTIES: APPLICANT: Transport Workers' Union of New South Wales FILE NUMBER(S): IRC 2207 of 2007 CORAM: Boland J CATCHWORDS: Registered organisations - Organisation of employees - Transport industry - whether invalidity had occurred in elections in the applicant organisation and the management and administration of the organisation - Conflicting rules - application of generalia specialibus non derogant principle of construction - Whether non-compliance with rule by itself rendered the election of officers invalid - Held election of officers not attended by any invalidity. LEGISLATION CITED: Industrial Relations Act 1996 ss 151A, 153(1)(e), 288, 288(3), 288(4) Hardacre v Health and Research Employees' Association of NSW (No 3) (1999) 91 IR 302 Perpetual Executors and Trustees Association of Australia Limited v Federal Commission of Taxation (1948) 77 CLR 1 CASES CITED: Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652 Seamen's Union of Australia New South Wales Branch, Re (2001) 107 IR 90 HEARING DATES: 14 February 2008 DATE OF JUDGMENT: 21 February 2008 APPLICANT: LEGAL REPRESENTATIVES: Mr A A Hatcher of Counsel Mr M Aird Transport Workers' Union Legal Department JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J Thursday 21 February 2008 Matter No IRC 2207 of 2007 RE TRANSPORT WORKERS' UNION OF NEW SOUTH WALES Application by Transport Workers' Union of New South Wales for a determination of the question of an invalidity under s 288 of the Industrial Relations Act 1996 JUDGMENT [2008] NSWIRComm 35 1 The Transport Workers' Union of New South Wales ('the applicant') is an organisation of employees registered under the Industrial Relations Act 1996. The applicant seeks the following under s 288 of the Act: 1. A determination as to whether an invalidity has occurred in elections in the applicant organisation and the management and administration of the organisation; and, if any invalidity be found to have occurred, 2. Such orders as may be necessary and appropriate to rectify any such invalidity or cause it to be rectified, to negative, modify, or cause to be modified the consequences in law of any such invalidity, and/or to validate any act, matter or thing rendered invalid by or because of the invalidity. 2 The persons said to be interested or potentially affected by the application were identified as: 1. Persons holding the position of President, Vice-President, Secretary/Treasurer, Assistant Secretary - Transport, and ordinary members of the Administrative Committee, in the applicant organisation. 2. Members of the applicant organisation. 3 Section 288 of the Act is in the following terms: 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. 4 For the purpose of notifying interested persons of the application the applicant was directed to place a notice in the Sydney Morning Herald on 11 January 2008. The notice was in the following terms: NOTICE of Application for Orders pursuant to s 288 of the Industrial Relations Act 1996 by the Transport Workers' Union of New south Wales ("TWU") in Matter No IRC 2207 of 2007 Notice is hereby given that on a date to be fixed the TWU will seek Orders from the Industrial Relations Commission of New South Wales validating the election of its Officeholders since 11 May 2007. The TWU seeks the orders due to an administrative oversight that resulted in the possibility that the election of the current Officeholders was technically in breach of the Union's rules. The TWU's application is listed for Further Directions before the Honourable Justice R P Boland on Friday, 1 February 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 appear at the abovementioned time and place and beforehand should advise the Deputy Industrial Registrar of their intention on (02) 9258 0006. No person or organisation responded to the Notice. The application was subsequently heard on 14 February 2008. 5 It may be noted that the application was made to the Industrial Relations Commission of New South Wales. Matters arising under s 288 of the Act may only be dealt with by the Industrial Court of New South Wales: see s 153(1)(e) and s 151A. The application should have been made to the Court. The application is amended so that it is an application to the Court: see r 148 of the Industrial Relations Commission Rules 1996. 6 Referring to the affidavit sworn on 31 January 2008 by Michael Aird, a legal officer employed by the TWU, Mr A Hatcher of counsel for the applicant explained the circumstances giving rise to the application: 1.1 The applicant's rules provide for direct election by members of its Committee of Management. The Committee of Management, in turn, elects the President, Vice-President, Secretary/Treasurer, Assistant Secretary – Transport, and the ordinary members of the Administrative Committee. 1.2 The applicant's rules provided that the collegiate election of the applicant's officers by the Committee of Management was to occur within 28 days of the declaration of results of the direct election for members of the Committee of Management (rule 24.3). 1.3 As at June 2006, the applicant's rules provided, in effect, that nominations for election to the Committee of Management were to open on the second Tuesday in November 2006 and close on the second Tuesday in December 2006, with the election to occur in or about February-March-April 2007 (the uncertainty is because the Returning Officer had a discretion within certain parameters as to the opening and closing dates of the ballot). This meant that, under rule 24.3, the newly elected Committee of Management would meet in about April-May 2007 to elect the officers. 1.4 In late June 2006, the Returning Officer (being the Electoral Commissioner of NSW) informed the applicant that the State Electoral Office would be unable to conduct the applicant's elections in the period 1 January-31 April 2007 due to the State election, and invited the applicant to re-schedule its election before 31 December 2006 or after 1 May 2007 assuming a contested election occurred. 1.5 The applicant accordingly varied its rules, in accordance with its rules and the Act, to move the elections forward. The new rule 64 provided for the election process to commence (by way of opening of nominations) on 12 September 2006, with the ballot (if one was required) to close on 1 December 2006. Importantly, the new rule provided that persons elected to office would take office on 1 January 2007 (rule 64.5). 1.6 When nominations for these elections closed in accordance with rule 64 on 3 October 2006, the number of persons nominating for positions on the Committee of Management did not exceed the number of positions provided for under the rules. Accordingly, the Returning Officer declared elected the new members of the Committee of Management on 3 October 2006. 1.7 Under rule 24.5, the members of the new Committee of Management did not take office until 1 January 2007. From 1 January 2007 until 31 April 2007, the Returning Officer could not conduct the collegiate election for officers for the reason identified in paragraph 1.4 above. 1.8 On 11 May 2007, the Committee of Management met for the purpose, inter alia, of electing the officers. The election was conduct by the State Electoral Office. In the case of each position, the number of nominations did not exceed the number of available positions. The officers were declared elected on that day. 1.9 An issue has now arisen as to whether an invalidity has occurred, in that the election of officers did not occur within 28 days of the Committee of Management having been declared elected on 3 October 2006. This question goes to the validity of the election of the officers itself, and to all management and administrative decisions and acts of the officers since 28 days after 3 October 2006. 7 The rules of the TWU that are relevant to a consideration of this matter are in the following terms: 24.2 Each Sub-branch shall be represented on the Committee of Management by the following number of Committee Members, elected each fours years by a ballot of members eligible to vote in the respective Sub-branch: 24.2.1 Sydney and Central Sub-branch 7 Representatives 24.2.2 Newcastle and Northern Sub-branch 4 Representatives 24.2.3 South Coast and Southern Sub-branch 4 Representatives 24.2.4 Textile, Clothing and Footwear Sub-branch 3 Representatives in addition to the person holding the position of Secretary of the Textile Clothing and Footwear Sub-branch who shall be an ex officio member of the Committee of Management. 24.3 Within twenty-eight days of the declaration of the results of elections for members of the Committee of Management, the Committee of Management shall meet for the purpose of electing by and from the members of the Committee of Management the following officers of the Union: 24.3.1 Union President (one) 24.3.2 Union Vice-President (one) 24.3.3 Union Secretary/Treasurer (one) 24.3.4 Union Assistant Secretary – Transport (one) 24.3.5 Ordinary members of the Administrative Committee (three) The positions of Union Vice-President, Union Assistant Secretary and Ordinary members of the Administrative Committee shall be honorary. … 56.1 Nominations for offices directly elected by the membership shall be received by the Returning Officer. The opening time for nominations shall be at noon on the second Tuesday in November 1994, and every four (4) years thereafter. The closing time for nominations shall be until noon on the second Tuesday in December 1994, and every four (4) years thereafter. … 57.1 Whenever an election is held to fill any of the positions referred to in these rules, the Returning Officer shall fix the dates when the ballot shall open and close. The period between the opening and closing dates of the ballot shall be not less than 10 days and not more than 28 days, and the period between the close of nominations and the closing date of the ballot shall be not less than 28 days and not more than 3 months. … 64 SPECIAL RULE - 2006 ELECTIONS 64.1 Notwithstanding any other provisions of these rules, the provisions of this rule shall apply to the conduct of the quadrennial election process for offices elected directly by the membership due to commence in 2006 ("the 2006 elections"). 64.2 The roll voters for the 2006 elections shall close at 5pm on 1 September 2006. 64.3 Nominations for the 2006 elections shall open at noon on 12 September 2006, and shall close at noon on 3 October 2006. 64.4 The ballot for the 2006 elections, if required, shall open 13 November 2006, and shall close on 1 December 2006. 64.5 Persons elected to office at the 2006 elections shall take office on 1 January 2007. 64.6 Except as specifically provided for in this rule, rules 55, 56 and 57 shall otherwise apply to the conduct of the 2006 elections. 64.7 This rule will have no further effect after 1 January 2007. Consideration 8 In this matter the Court is first required to determine whether any invalidity has occurred. A determination of this question is a jurisdictional prerequisite for the making of any further orders under ss 288(3) and (4): Re Seamen's Union of Australia New South Wales Branch (2001) 107 IR 90 at [33]. It may be seen from the explanation by counsel for the applicant based on the evidence of Mr Aird that if there was an invalidity it would be because rule 24.3 of the applicant's rules was not complied with. That is to say, the Committee of Management did not meet within 28 days of the declaration of the results of elections for members of the Committee of Management (that being 28 days after 3 October 2006) for the purpose of electing by and from the members of that Committee the officers of the Union identified in the rule. 9 The applicant contended there was no invalidity. It was submitted there was an inconsistency between rule 24.3 and rule 64.5. Whereas rule 24.3 required the Committee of Management to meet and elect the officers within 28 days of having been declared elected on 3 October 2006, rule 64.5 provided that the members of the Committee of Management did not take office until 1 January 2007, meaning - it was contended - there was no basis for the Committee to meet and do anything before that time. 10 The applicant relied on generalia specialibus non derogant principle of construction to resolve the conflict: see Perpetual Executors and Trustees Association of Australia Limited v Federal Commission of Taxation (1948) 77 CLR 1 at 29-30 per Dixon J. It was submitted that rule 24.3 was to be properly characterised as a rule to be generally applicable to elections conducted in accordance with the normal timetable provided for in rules 56 and 57, whereas rule 64 was a special rule directed at the specific circumstances of the 2006 elections. Mr Hatcher submitted that rule 64 was to be taken as the dominant provision concerning those elections. 11 I agree with the applicant. The generalia specialibus principle may be called in aid "where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation": Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652 at 657. 12 Rule 64 is clearly the dominant provision and specifically applied to the circumstances of the 2006 elections. Rule 64.1 provided that rule 64 applied "Notwithstanding any other provisions of these rules …". Rule 64.6 provides that "Except as specifically provided for in this rule, rules 55, 56 and 57 shall otherwise apply to the conduct of the 2006 elections". Rule 24.3 is excluded from this rule, indicating that it was not regarded as applicable. 13 It was further submitted for the applicant that even if rule 24.3 was applicable, it did not mean that any non-compliance with that rule by itself rendered the election of the officers on 11 May 2007 invalid. In Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at 333 [91], McHugh, Gummow, Kirby and Hayne JJ said, in the context of statutory construction: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. It was submitted that the principle enunciated in Project Blue Sky may readily be applied to the construction of a legal instrument such as the registered rules of an industrial organisation and I consider that to be correct. 14 When one considers that: a "generous, liberal and non-restrictive approach" should be adopted in construing union rules (see Hardacre v Health and Research Employees' Association of NSW (No 3) (1999) 91 IR 302 at 321-322); that rule 64.5 provides that persons elected to office at the 2006 elections shall take office on 1 January 2007; that the election of the Union's officers was uncontested; and, that the officers of the Union were elected in an election that was properly and lawfully conducted by the State Electoral Office, I have to agree with the applicant that any non-compliance with rule 24.3 could not be regarded as invalidating the election. 15 I find that the elections to the positions of President, Vice-President, Secretary/Treasurer, Assistant Secretary – Transport, and the ordinary members of the Administrative Committee held on 11 May 2007 were not attended by any invalidity. Orders 16 The Court makes the following declaration: The Court orders and declares that the elections to the positions of President, Vice-President, Secretary/Treasurer, Assistant Secretary – Transport, and the ordinary members of the Administrative Committee of the Transport Workers' Union of New South Wales held on 11 May 2007 were not attended by any invalidity. ________________________________________ 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.