Industrial Relations Commission New South Wales Medium Neutral Citation: The Australian Commercial Dental Laboratories Association (NSW) [2012] NSWIRComm 136 Hearing dates: 15 October 2012Written submissions: 15 November 2012 Decision date: 30 November 2012 Jurisdiction: Industrial Court of NSW Before: Walton J Vice-President; Staff J; Backman J Decision: 1. The registration of The Australian Commercial Dental Laboratories Association (NSW), an organisation of employers under the Industrial Relations Act 1996 is hereby cancelled. 2. That such cancellation shall take effect on and from seven days of the date of this judgment. 3. That the Industrial Registrar record the cancellation under the relevant register pursuant to s 232 of the Industrial Relations Act 1996. 4. All assets of the organisation which remain as at the date of the cancellation of its registration are to be distributed in accordance with the rules of the organisation. 5. Further, the Industrial Registrar is to publish on the Industrial Relations Commission website notification of these Orders relating to the cancellation of the said industrial organisation. 6. Further, the Industrial Registrar is to cause a copy of the judgment of the Court relating to the cancellation of the said industrial organisation to be forwarded to each Member of the Executive (defined at Rule 42 of the organisation's Rules) at the address last notified to the commission. Catchwords: REGISTERED ORGANISATION - Reference by Industrial Registrar for cancellation of registration - report by Industrial Registrar - notice of motion to cancel registration under industrial relations legislation of an industrial organisation of employers - failure to comply with organisation's rules concerning election of officers - failure to lodge accounting records, other financial statements and statutory declarations of office holders - whether organisation defunct - grounds for cancellation of registration - whether necessary to make orders concerning assets and liabilities - order made cancelling registration Legislation Cited: Industrial Relations (General) Regulation 1992 Industrial Relations (General) Regulation 2002 Industrial Relations Act 1991 Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: George Michael Grimson, Industrial Registrar (Applicant) The Australian Commercial Dental Laboratories Association (NSW) (Respondent) Representation: G M Grimson, Industrial Registrar (Applicant) No appearance (Respondent) File Number(s): IRC 856 of 2012 JUDGMENT 1George Michael Grimson, Industrial Registrar ("the applicant"), by notice of motion filed on 27 August 2012, sought an order pursuant to s 225(1) of the Industrial Relations Act 1996 ("the 1996 Act") cancelling the registration of The Australian Commercial Dental Laboratories Association (NSW) ("the organisation") as an industrial organisation of employers. 2The grounds and reasons in support of the application are: 1. That the said industrial organisation has contravened industrial relations legislation under s 226(a) of the Act in that: (a) elections of officers have not been conducted in accordance with s 249 of the Act and cl of the Industrial Relations (General) Regulation 2001; (b) accounting records and other financial statements have not been lodged with the Industrial Registrar pursuant to s 282 of the Act; and (c) statutory declarations relating to the particulars of office holders have not been lodged with the Industrial Registrar pursuant to s 278(3) of the Act. 2. Such other grounds and reasons as the Industrial Court thinks fit. 3A report was filed on 6 August 2012 by the applicant detailing the above failures. 4On 16 August 2012, the notice of motion was listed for directions before Walton J, Vice-President. There was no appearance by or on behalf of the organisation. 5His Honour dispensed with, pursuant to r 18(2)(c) of the Uniform Civil Procedure Rules 2005, the service of the notice of motion on the organisation. His Honour directed that the applicant cause an announcement to be placed on the Industrial Relations Commission's website in terms produced to the court by the applicant. 6Ancillary directions were also made in relation to forwarding a link of the announcement to the State Peak Councils with a request that they bring the announcement to the attention of their members. 7On 13 September 2012, there was a further directions hearing before the Vice-President. Again there was no appearance by or on behalf of the organisation. The applicant advised the Court that, in accordance with the directions made, an announcement was published on the Industrial Relations Commission's website on 28 August 2012. On 3 September 2012, a link to that announcement was forwarded to the State Peak Councils. 8The applicant further advised that a copy of the notice of motion had been forwarded to the registered office of the organisation and had been returned to sender. 9The matter was listed for hearing before the Full Bench on 15 October 2012. At this hearing there was again no appearance for the organisation. Relying upon a Report on the affairs of the organisation which was admitted into evidence, the applicant submitted that it had not filed financial returns since year ended 30 June 2007; that it had contravened the industrial legislation in that it had failed to apply to have elections of officers conducted in accordance with s 249 of the 1996 Act and cl 31 of the Industrial Relations (General) Regulation 2001 ("the 2001 Regulation") and that there was no record of any application to the Industrial Registrar for an election of officers to be conducted since 4 July 2006. 10On 4 July 2006, the State Electoral Commissioner declared the result of that election. The term of office under the organisation's rules was for a period of 12 months. 11It was further submitted that the organisation had failed to lodge accounting records and other financial statements with the Industrial Registrar pursuant to s 282 of the Act. The last financial statements lodged on behalf of the organisation were for the financial year ended 30 June 2007. The organisation had also failed to lodge statutory declarations pursuant to s 278 of the 1996 Act since 24 April 2008. 12The applicant submitted that the organisation was defunct. 13We note that the Report by the applicant also stated that contact had been made with Mr Robert Boshier, National President and New South Wales Councillor of the Australian Commercial Dental Laboratories Association, who indicated that members of the organisation had elected to dissolve it. 14The organisation is an industrial organisation of employers registered under Ch 5 of the Industrial Relations Act 1991 ("the 1991 Act") and taken to be an industrial organisation of employers registered under Ch 5 of the Act by virtue of s 223(1) of the 1991 Act. 15As the organisation was incorporated under s 421 of the 1991 Act, it is "a State organisation" in terms of s 217 of the 1996 Act. Therefore, Ch 5 of Pt 4 of the 1996 Act (Regulations of State Industrial Organisations) applies to the organisation. 16Section 249 of the 1996 Act, which is found within Pt 4 of Ch 5 of the 1996 Act, provides that "regulations may make provision for or with respect to the election of officers of State organisations". Clause 31(2) of the 2001 Regulation states that the provisions of ss 442 to 451 of the 1991 Act (and the regulations under those provisions) apply to a State organisation as regulations under s 249 of the Act. Section 444(1) of the 1991 Act provided: 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. 17In our view, the failures or omissions of the organisation since 2007 to adhere to legislative requirements, as well as its own rules for holding elections every year, clearly demonstrates that ground 1(a) of the notice of motion has been made out. 18An examination of s 282 of the 1996 Act is necessary to determine whether ground 1(b) (failure to lodge accounting records and other financial statements) has been made out by the applicant. Section 282 provides as follows: (1) The Regulations may make provision for or with respect to the accounts and audit of industrial organisations. (2) Any such regulations may deal with any of the matters dealt with in Division 11 of Part 9 of the Workplace Relations Act 1996 of the Commonwealth in connection with the accounts and audit of organisations registered under that Act. The regulations may adopt the provisions of that Division, with or without modification. (3) Until any such regulations are made, the provisions of Subdivision 2 of Division 8 of Part 3 of Chapter 5 of the Industrial Relations Act 1991 (and the regulations under those provisions) apply to a State organisation as regulations made under this Division. 19With no such regulations fitting the description in s 282(1) under the 1996 Act in existence, s 282(3) operates to preserve the relevant provisions in the 1991 Act (Subdivision 2 of Div 8 of Pt 3 of Ch 5). Section 518 of the 1991 Act relevantly provides: (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) An organisation must not fail to comply with this section. 20Under s 518(1) of the 1991 Act the "period prescribed by the regulations" is 14 days after the relevant meeting, as outlined in Cl 64 of the Industrial Relations Regulation 1992 ("the 1992 Regulation"). The relevant "meeting" 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". 21The evidence is that the organisation did not lodge accounting records or other financial statements with the Industrial Registrar after the year ended 30 June 2007. 22The financial statements for that year reported that the organisation held net assets of $57,857. 23Reliance was also placed upon the failure of the organisation to lodge statutory declarations relating to the particulars of office holders. Section 278 of the Act requires each State organisation must lodge a statutory declaration annually with the Industrial Registrar concerning the proper keeping of the organisation's membership register and verifying the provision of certain particulars relating to office holders. Section 278(9) provides that if default is made in complying with the section, it is guilty of an offence. 24The applicant submitted that he had caused the records of the Industrial Registry to be searched and no record had been found of any return lodged by the organisation under s 278 of the 1996 Act since 24 April 2008. 25The failure of the organisation to lodge returns under s 278 of the 1996 Act, together with its failure to conduct elections and lodge financial returns has led us to find that pursuant to s 226(g) of the 1996 the organisation, the Australian Dental Laboratories Association (NSW), is defunct. 26The authority of the Court to cancel the registration of industrial organisations is set out in s 227 of the Act. Section 227 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. 27Although the Court acknowledges that the cancellation of the registration of the organisation on the basis of s 226(a) must be exercised with caution, in accordance with s 227(2) of the 1996 Act, there are proper grounds to order cancellation, as the organisation is defunct. 28We have considered whether supplementary orders should be made concerning the assets and liabilities, if any, of the organisation. We accept the submission made by the applicant that given the potential sum that may still be held to the credit of the organisation that final orders in this matter should include an additional order that each member of the executive of the organisation be provided with a copy of this judgment. In our view, the assets of the organisation are to be distributed in accordance with its rules. Orders 29The Court makes the following orders: 1. The registration of The Australian Commercial Dental Laboratories Association (NSW), an organisation of employers under the Industrial Relations Act 1996 is hereby cancelled. 2. That such cancellation shall take effect on and from seven days of the date of this judgment. 3. That the Industrial Registrar record the cancellation under the relevant register pursuant to s 232 of the Industrial Relations Act 1996. 4. All assets of the organisation which remain as at the date of the cancellation of its registration are to be distributed in accordance with the rules of the organisation. 5. Further, the Industrial Registrar is to publish on the Industrial Relations Commission website notification of these orders relating to the cancellation of the said industrial organisation. 6. Further, the Industrial Registrar is to cause a copy of the judgment of the Court relating to the cancellation of the said industrial organisation to be forwarded to each Member of the Executive (defined at Rule 42 of the organisation's Rules) at the address last notified to the commission. ********** 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. Decision last updated: 30 November 2012