in the matter of Industrial Relations Act 1996 (NSW)

[2022] NSWSC 1437

Supreme Court

New South Wales

Medium Neutral Citation:

The application of National Union of Workers NSW Branch; in the matter of Industrial Relations Act 1996 (NSW) [2022] NSWSC 1437

Hearing dates:

11 October 2022

Date of orders:

11 October 2022

Decision date:

11 October 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The registration of the National Union of Workers, NSW Branch, as an industrial organisation be cancelled pursuant to s 227(1) Industrial Relations Act 1996 (NSW).

(2) No order as to costs.

Catchwords:

INDUSTRIAL LAW – industrial organisations –cancellation of registration – request of union – jurisdiction – registration cancelled – discretionary matters

Legislation Cited:

Fair Work (Registered Organisations) Act 2009 (Cth)

Industrial Relations Act 1996 (NSW), ss 225(3), 226, 227(1), 355B(e)

Category:

Principal judgment

Parties:

National Union of Workers NSW Branch
(Plaintiff)

Representation:

Solicitors:
McNally Jones Staff Lawyers (Plaintiff)

File Number(s):

2022/00266798

EX TEMPORE JUDGMENT

1. By summons filed on 7 September 2022, the NSW Branch of the National Union of Workers (the plaintiff or the Union) applies for an order under s 227(1) of the Industrial Relations Act 1996 (NSW) that it be deregistered as an industrial organisation.

2. The plaintiff is capably represented by Mr Keats, solicitor. An affidavit has been provided by Christopher Stephen Dundon who is the State Secretary of the Union. Annexed to Mr Dundon’s affidavit are a number of documents which give texture to and explain the basis upon which the application is made and address a number of discretionary considerations which might arise. I have been greatly assisted by the written and oral submissions of Mr Keats who patiently stepped me through the legislation and parts of the evidence provided by Mr Dundon.

3. The Court has jurisdiction to make the order sought pursuant to s 355B(e) of the Industrial Relations Act which provides:

The Supreme Court has jurisdiction over the following proceedings—

…

(e) Proceedings under Parts 3, 4 and 5 of Chapter 5 (which deal with the registration and regulation of industrial organisations), other than Division 3 of Part 4 (Election of officers),

4. The plaintiff has standing to make the application by virtue of s 225(3) of the Act which provides that an “industrial organisation may apply for the cancellation of its own registration.”

5. There is no contradictor to the application and Mr Dundon swears that notices have been placed in the Sydney Morning Herald and on a website of the United Workers Union, a federal industrial organisation with which the plaintiff is associated or amalgamated. It appears that nobody opposes the application for deregistration.

6. The grounds upon which the Court might exercise its powers to deregister a state industrial organisation are set out in s 226 of the Industrial Relations Act. Relevantly, subs (f) provides that the Court may make an order where “the organisation has applied for the cancellation of its own registration.”

7. Mr Keats acknowledges that the use of the word “may” in s 226 arguably gives rise to a discretion. This is an issue to which much of the material annexed to Mr Dundon’s affidavit is directed. The evidence includes the Constitution of the Union. The Constitution provides the circumstances in which it might seek its own deregistration. Article 43.1 of the Constitution, under the heading “Dissolution of Winding Up of Union”, provides:

“The union shall not apply for cancellation of registration as a State Organisation under the Industrial Relations Act 1996 and its dissolution unless the Committee of Management has by two-thirds majority voted in favour of its cancellation and deregistration.”

8. The minutes of a meeting held on 9 December 2009 show, firstly, that Mr Dundon was present at the meeting and, secondly, the committee voted with a majority of 9 to 1, with 3 abstentions in favour of a motion to apply for deregistration.

9. Mr Keats went on to explain the delay in bringing the application. There were two issues. First, there were some difficulties in the disposition of the premises owned by the plaintiff. Second, there were proceedings brought against a named person involving, in general terms, “the misuse of union funds.” That second issue resulted in criminal proceedings which have now concluded.

10. It is unnecessary to go further into the reasons for the delay in acting upon the 9 December 2019 resolution, other than to note that I am satisfied that the delay is satisfactorily explained and that both of the issues that gave rise to that delay have now been resolved.

11. Other discretionary considerations were also canvassed in the evidence and submissions. The members of the Union, that is the plaintiff, remain protected by an industrial organisation, the United Workers Union (UWU), a federal trade union. This is the result of an agreement between the UWU and the plaintiff, which was entered into on 26 September 2019 and was subject to at least two decisions of Deputy President Gostencnik under the Fair Work (Registered Organisations) Act 2009 (Cth).

12. The agreement provided in cl 2.1: “A person who is a member of the union”, that is the plaintiff, “is entitled to the same rights duties and obligations of membership as a person who is a member of the organisation”, that is the UWU.

13. I am satisfied that the current members of the plaintiff organisation remain protected by an appropriate industrial organisation.

14. The evidence also satisfies me that the Union has no outstanding liabilities and, in any event, the agreement to which I have referred means the UWU will take on responsibility for, and is liable for, any such liabilities if they did exist.

15. The evidence of Mr Dundon also establishes that, as far as he is aware, the plaintiff is up to date in terms of its filing of any annual returns and has complied with all statutory obligations.

16. Accordingly, the statutory prerequisites for the making of the order are satisfied and there is no discretionary basis upon which the Court should decline to act on the Union’s application for deregistration.

17. Accordingly, I propose to make the orders sought in the summons as follows:

1. The registration of the National Union of Workers, NSW Branch, as an industrial organisation be cancelled pursuant to s 227(1) Industrial Relations Act 1996 (NSW).

2. No order as to costs.

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Decision last updated: 21 October 2022