The Association of Wall & Ceiling Industries of New South Wales [2012] NSWIRComm 82

Industrial Relations Commission New South Wales Medium Neutral Citation: The Association of Wall & Ceiling Industries of New South Wales [2012] NSWIRComm 82 Hearing dates: Wednesday 18 July 2012 Decision date: 02 August 2012 Jurisdiction: Industrial Court of NSW Before: Walton J, Vice-President Decision: The Court proposes to make the following orders effective 14 days from the date of this judgment: (1) The Court determines, declares and orders that: a)an invalidity has occurred in the management and administration of AWCI, in that AWCI by its officers and employees did fail to seek the approval of the Industrial Registrar for the conduct of the election of officers at the 2011 Annual General Meeting of AWCI in accordance with cl 31 of the Industrial Relations (General) Regulation 2001 (incorporating the provisions of s 444 of the 1991 Act (repealed)); b)an invalidity occurred in the management and administration of AWCI in that office bearers appointed at the 2011 Annual General Meeting of AWCI did conduct the affairs of AWCI between that Annual General Meeting and the Annual General Meeting held in 2012 without having been elected in conformity with the Industrial Relations (General) Regulation 2001; and c)an invalidity occurred in the elections for AWCI for the year 2011-2012, in that AWCI failed to obtain the approval of the Industrial Registrar to conduct an election for that year in accordance with cl 31 of the Industrial Relations (General) Regulation 2001 (incorporating the provisions of s 444 of the 1991 Act (repealed)). (2) That upon the basis of such invalidities, the Court, being satisfied that the following orders do not do substantial injustice to AWCI or to any member or creditor of AWCI or to any person having dealings with AWCI, orders: a)that the effect or effects of the failure to make an application to the Industrial Registrar under the preserved s 444 of the 1991 Act regarding the conduct of ballot for offices of AWCI in the year 2011 is negatived; b)the election of officers of AWCI at the 2011 AGM is validated; and c)that any decisions made by the Executive Committee of AWCI between the declaration of the election of the officers of AWCI at the Annual General Meeting in 2011 and the election conducted at the 2012 Annual General Meeting and any action taken by Tony Roberts, Todd Sanderson, Shane Croker, Tony Mouritz, Maurice Langendam, Malcolm McMartin, Frank Kostzan, Ted Kasznik, Simon Hartley, Bing Wu, Bradley Thomas and Simon Crossman in discharging the duties and functions of the offices obtained by them in the same period, that would otherwise have been valid had the officers been elected in accordance with the requirements of the Act, are validated. This Court shall make the proposed orders, without further hearing from AWCI, 14 days from the date of this judgment, unless AWCI, by its officers, or agent, makes a submission within that timeframe that the form of the orders should be varied. (Any submission should be accompanied by alternative proposed draft orders.) In the event of the filing of such submission within the time specified, the Court shall make a further determination as to the form of orders. (The Court would not propose to list the matter before making such a determination unless AWCI, in its submission, seeks such a listing.) Catchwords: INDUSTRIAL ORGANISATION - invalidity in the management and administration and elections of a State organisation for the 2011-2012 electoral year - proper basis to make orders of validation, rectification and modification - order would not create substantial injustice - proposed orders - orders to be made within 14 days subject to further submissions as to form Legislation Cited: Industrial Relations Act 1991 Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001 Cases Cited: Clay Brick & Paver Association of New South Wales [2011] NSWIRComm 110 Liquor, Hospitality and Miscellaneous Union, New South Wales Branch [2006] NSWIRComm 244 National Meat Association of New South Wales and Anor [2008] NSWIRComm 33 Re Newcastle Master Builders' Association [2007] NSWIRComm 57 Re Seamens' Union of Australia New South Wales Branch [2001] NSWIRComm 151 The Master Builders' Association of New South Wales (No 3) [2010] NSWIRComm 39 Category: Principal judgment Parties: The Association of Wall & Ceiling Industries of New South Wales Representation: I J Warren (Applicant) File Number(s): IRC 465 of 2012