in the matter of Industrial Relations Act 1996 (NSW)

[2020] NSWSC 1187

Supreme Court

New South Wales

Medium Neutral Citation:

The application of New South Wales Independent Education Union; in the matter of Industrial Relations Act 1996 (NSW) [2020] NSWSC 1187

Hearing dates:

On the papers

Decision date:

02 September 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Order, pursuant to s 227(1) of the Industrial Relations Act 1996 (NSW) (the Act), that the plaintiff’s registration be cancelled on the ground that it has applied for the cancellation of its own registration within the meaning of s 226(f) of the Act.

(2)   No order as to costs.

(3)   Note that a copy of these reasons has been provided to the Principal Registrar for the purposes of the notification which he is required to make to the Industrial Registrar that the Court has cancelled the plaintiff’s registration.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial organisations — Registration — Cancellation of registration — At request of industrial organisation

Legislation Cited:

Fair Work (Registered Organisations) Act 2009 (Cth)

Industrial Relations Act 1996 (NSW), ss 225–228, 231, 231A

Category:

Principal judgment

Parties:

New South Wales Independent Education Union (Plaintiff)

Representation:

Solicitors:
Unsworth Legal (Plaintiff)

File Number(s):

2020/240244

Judgment

Introduction

1. By summons filed on 17 August 2020, New South Wales Independent Education Union (the plaintiff) applies for an order cancelling its registration. The Registrar referred the matter to me for it to be determined in chambers as there is no contradictor.

The relevant facts

2. The plaintiff relied on the affidavit of Mark Northam sworn 17 August 2020. Mr Northam is the plaintiff’s General Secretary. He is also the Secretary of the Independent Education Union of Australia, NSW/ACT Branch (the Federal branch). He deposed that the Federal branch is a branch of an industrial organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The Independent Education Union of Australia (the Federal Union) was registered under the Conciliation and Arbitration Act 1904 (Cth) (now repealed) on 7 October 1988.

3. On 22 November 2019, the Federal branch was registered under the Industrial Relations Act 1996 (NSW) (the Act) and was allocated registration number EE80. Under the Rules of the Federal Union, persons in New South Wales or the Australian Capital Territory who become members of the Federal Union automatically become members of the plaintiff, without the need for any additional application or payment. The plaintiff has no members other than those who are members of the Federal Union. All of the plaintiff’s assets have been transferred to the Federal Union. To Mr Northam’s knowledge the plaintiff has no debts and no claims or demands upon it.

4. The Federal branch has been recorded in the Higher School Certificate Marking and Related Casual Employees Rates of Pay and Conditions Award 2019 where the plaintiff is also recorded. The Federal Brach is also recorded in the Teachers’ (NSW Early Childhood Service Centres) Salaries and Miscellaneous Conditions Award 2019 and the Crown Employees (Australian Music Examinations Board (NSW) Examiners, Assessors and Chief Examiners) Award 2020.

5. Mr Northam deposed that there are no matters before the Industrial Commission of New South Wales which were initiated by the plaintiff.

6. By resolution made on 10 July 2020, the plaintiff’s executive has resolved that it wishes to cancel the plaintiff’s registration as an industrial organisation pursuant to the Act. Mr Northam deposed that:

“It is in the interests of the union overall that such cancellation occur as it will save the administration costs that are incurred as a result of dual registration and it will simplify the management of union business, for example, the conduct of meetings of the union.”

The statutory framework

7. Division 2 of Part 3 of Chapter 5 of the Act provides for the cancellation of the registration of an industrial organisation. An industrial organisation is defined by the Dictionary to the Act as “an industrial organisation of employees or an industrial organisation of employers”. Relevantly, an “industrial organisation of employees” means “an industrial organisation of employees registered, or taken to be registered, under Chapter 5”. It follows that the plaintiff is an industrial organisation, being an industrial organisation of employees.

8. Section 225(1) of the Act provides that an industrial organisation may apply for the cancellation of the registration of an industrial organisation. Section 225(3) provides that an industrial organisation may apply for the cancellation of its own registration. Section 226 sets out the grounds on which the registration of an industrial organisation may be cancelled which, relevantly, include “that the organisation has applied for the cancellation of its own registration”: s 226(f). Section 227(1) empowers this Court to cancel the registration of an industrial organisation if it considers that a ground for cancellation has been established. Section 228 provides for the consequences of cancellation. The Court has power to make ancillary orders under s 231 of the Act. The Principal Registrar of this Court is to notify the Industrial Registrar that the Court has cancelled the registration of an industrial organisation: s 231A(b).

Consideration

9. Mr Northam’s affidavit when read with the summons is sufficient to establish that the plaintiff has applied for the cancellation of its registration. As this ground has been established, the Court has power to cancel the registration. I am satisfied on the basis of his evidence that the plaintiff’s registration ought be cancelled. The plaintiff’s continued registration would appear to serve no useful purpose. Its members can expect to have their interests served by the Federal branch.

10. I am satisfied that there is no need for a defendant since there is no one who will be adversely affected by the cancellation of the plaintiff’s registration. In these circumstances, I am persuaded that it is appropriate to make the orders sought in the summons.

Orders

11. For the reasons set out above, I make the following orders:

1. Order, pursuant to s 227(1) of the Industrial Relations Act 1996 (NSW) (the Act), that the plaintiff’s registration be cancelled on the ground that it has applied for the cancellation of its own registration within the meaning of s 226(f) of the Act.

2. No order as to costs.

3. Note that a copy of these reasons has been provided to the Principal Registrar for the purposes of the notification which he is required to make to the Industrial Registrar that the Court has cancelled the plaintiff’s registration.

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Decision last updated: 02 September 2020