Leading Age Services Australia NSW-ACT

[2016] NSWIC 7

Industrial Court

New South Wales

Medium Neutral Citation:	Leading Age Services Australia NSW-ACT [2016] NSWIC 7
Hearing dates:	24 May 2016
Date of orders:	25 May 2016
Decision date:	01 July 2016
Before:	Walton J - President
Decision:	In the circumstances, orders affecting the validation of casual appointments to the committee and the validation of acts and decisions in the management and administration of the applicant and/or office bearers of the applicant during the period of 1 February 2015 to 21 March 2016 are appropriate. Validating amended rule 29, however, would have entailed validating a rule that contravened a provision of the Act, namely s 242(2). Thus, an order to that effect would have perpetuated one of the deficiencies of amended rule 29. In order to prevent further invalidities deriving from reliance on amended rule 29, the Court resolved to order that rule 29 be amended in order to ensure its compliance with s 242(2) of the Act.
Catchwords:	Registered organisation – application for determination of invalidity and orders to validate actions of applicant – reasons for orders made pursuant to s 288(3) – alleged invalidity arose from applicant altering its rules – purported rule change increased term of office bearers and altered arrangements for casual appointments to committee – consent of Industrial Registrar not sought under s 245 – rule change contravened s 242(2) – office bearers purported to hold office past date when elections due – purported office bearers acted for applicant past that date – appointment of casual vacancies by purported office bearers in contravention of applicant’s rules – principles for finding of invalidity and orders under s 288 – invalidity found in management or administration of the applicant – invalidity found in the alteration of the rules of the applicant – invalidity found in office bearers acting for applicant after elections were due in February 2015 – invalidity found in the appointment of four casual vacancies – Court satisfied that no substantial injustice done to applicant, members or creditors of the applicant or persons dealing with applicant if orders are made pursuant to s 288(3) – adequate notice of proceedings given to members – no contradictor present in proceedings – orders made under s 288(3) would assist applicant in operating effectively and legally.
Legislation Cited:	Conciliation and Arbitration Act 1904 (Cth) Industrial Relations Act 1996
Cases Cited:	Allen and Ford v Laragy and Others (1975) 7 ALR 261 Liquor, Hospitality and Miscellaneous Union, New South Wales Branch [2006] NSWIRComm 244 Squires v. Stephenson & Ors (1983) 4 IR 84 The MEAA NSW. Application by The MEAA NSW for a determination of the question of an invalidity under s 288 of the Industrial Relations Act 1996 [2009] NSWIRComm 80
Category:	Principal judgment
Parties:	Leading Age Services Australia NSW-ACT (Applicant)
Representation:	Counsel: Bruce Miles (Applicant) Solicitors: TressCox Lawyers (Applicant)
File Number(s):	2016/18576

ReASons for Judgment

1. This matter concerns an application by Leading Age Services Australia NSW-ACT (‘the applicant’), an employer organisation registered under Ch 5 of the Industrial Relations Act 1996 (‘the Act’), seeking a declaration that invalidities occurred for the purposes of s 288(1) of the Act and consequential orders in relation to those invalidities.

2. This application arises from the applicant altering its rules (‘the rules’) to increase the term of its committee’s office bearers and allow the committee to fill casual vacancies without an election being held.

3. Background

4. At its Annual General Meeting on 25 November 2013, the applicant’s members passed a special resolution to amend rule 29 of the rules. In substance, the ‘new’ rule 29 was different to the ‘previous’ rule 29 in two ways:

1. It increased the term of the applicant’s office bearers from two years to three years; and

2. It removed any requirement for an election for an officer in the case of a casual vacancy, regardless of the length of the unexpired term which would be filled (the previous rule only allowed for such appointments within one year of the expiry of the original term).

3. (The changes referred to in (1) and (2) above shall hereafter be referred to as ‘the amendment’.)

5. The applicant did not seek consent from the Industrial Registrar for this alteration pursuant to s 245 of the Act.

6. In addition to this oversight, the second part of the amendment to rule 29 contravened s 242(2) of the Act which limits what rules can be made by a State organisation in regard to filling casual vacancies.

7. It was submitted by the applicant that, because rule 29 did not comply with s 242(2), the Industrial Registrar could not have consented to the alteration.

8. Despite these deficiencies, the applicant operated as if the amendment had validly altered rule 29. Elections for the applicant’s office bearers were held on 4 February 2013. Pursuant to the invalidly amended rules, those elected on 4 February 2013 purported to hold office for three years and no elections were held in February 2015 (as required by the rules prior to their invalid amendment). Those elected to office on 4 February 2013 thus purported to act for the applicant, in their elected capacity, past the date upon which their term as office bearers expired under the rules which existed prior to their invalid amendment.

9. The committee elected on 4 February 2015 passed resolutions filling four casual vacancies after February 2015.

10. On 5 November 2015, the applicant filed an application seeking declarations and orders pursuant to s 288(3) of the Act.

11. On 11 December 2015, upon the application of the applicant, the Court made the following interim orders:

1. The Applicant may conduct an election in accordance with its Rules that are the subject of the application filed on 5 November 2015.

2. The Applicant by Mr Robert Orie, elected President of the Applicant on 4 February 2013, shall notify the Industrial Registrar and request the Registrar arrange for the Conduct of an election of Committee Members in accordance with the rules of the Association and the attached timetable;

3. The initiating process be filed in amended form to reflect that the proceedings are before the Industrial Relations Court of New South Wales; and

4. The matter be listed for a Directions Hearing at 9.30 am on 29 March 2016.

12. Following the hearing of the matter, the Court made the following orders in chambers on 25 May 2016:

A. On the facts before it the Court declares and orders that:

An invalidity has occurred in the alteration of rule 29 of the rules of Leading Age Services Australia NSW-ACT in that the amended rule passed by the members on 25 November 2013 did not comply with s 242(2) of the Industrial Relations Act 1996 and the amended rule was not filed with the Industrial Relations Commission to seek the consent of the Industrial Registrar;

An invalidity has occurred in the management or administration of Leading Age Services Australia NSW-ACT in that persons purported to continue to hold office after February 2015 when elections should have been held until new office holders were validly elected on 21 March 2016; and

An invalidity has occurred in the management or administration of and appointments in Leading Age Services Australia NSW-ACT in that persons were purported to be appointed to casual vacancies after February 2015 when elections should have been held until new office holders were validly elected on 21 March 2016

B. That upon the basis of such invalidities, the Court, being satisfied that the orders made herein do not do substantial injustice to the Applicant or to any member or creditor of the Applicant or to any person having dealings with the Applicant, orders:

Rule 29 of Leading Age Services Australia NSW-ACT shall be deleted and a new rule 29 inserted as follows:

29. TERM OF OFFICE HOLDERS

(i) Members of the Committee, including the President, Vice President and Secretary/Treasurer, shall hold office for three years.

(ii) A Director who is elected President may have a maximum of two terms (six years) consecutively and must then have at least one term of three years out of office before becoming eligible for re-appointment to the Presidency.

(iii) Where a member of the Committee, including the President, Vice President and Secretary/Treasurer, ceases to hold office prior to the expiry of the three year term or where a new vacancy arises by the creation of a new office, including an increase in the number of members of the Committee the returning officer shall conduct an election for such casual or new vacancy in like manner as provided for in Rule 27 or Schedule One, whichever is applicable.

(iv) A Committee member elected to fill such a casual or new vacancy shall only hold office until expiry of the original three year term of the Committee. Where a casual vacancy arises within twenty seven months of the expiry of the original three year term, the Committee may appoint any representative of any financial member of the Association to fill such casual vacancy. A Committee member appointed to fill such a casual vacancy shall only hold office until expiry of the original three year term.

(v) A casual vacancy shall mean a vacancy occurring by reason of the death, resignation, mental unsoundness, continued absence from Committee meetings without reasonable excuse or bankruptcy on the part of the Committee member concerned or a vacancy occasion by the provisions of Rule 30 hereof.

The purported appointments of Kerry Mann, Chris Mamarelis, Matt Fisher and Andrew Mann to casual vacancies in the Committee of Management of Leading Age Services Australia NSW-ACT during the period 2 March 2015 to 21 March 2016 are validated.

All acts and decisions made in relation to the management and administration of Leading Age Services Australia NSW-ACT by persons purporting to be members of the Committee of Management and / or office holders of Leading Age Services Australia NSW-ACT during the period February 2015 to 21 March 2016 are validated.

13. This judgment contains of the reasons for making those orders.

14. The Application

15. In its application filed on 5 November 2015, the applicant sought the following relief:

1. An interim order pending the determination of this Application that:

(a) Leading Age Services Australia NSW-ACT may conduct an election in accordance with it Rules that are the subject of this Application;

(b) In the alternative, the current members of the Committee of Management of Leading Age Services Australia NSW-ACT may continue to hold office pending the outcome of this Application.

2. A declaration that between November 2013 to date, invaliditiies have occurred in the management and administration of Leading Age Services Australia NSW-ACT, an employer organisation registered and recognised under the provisions of the Industrial Relations Act 1996 (NSW)

3. An order that the election of office bearers of Leading Age Services Australia NSW-ACT for the years 2012, 2014-2015 is validated pursuant to the provision of section 288(3) of the Industrial Relations Act.

4. An Order that Rule 29 is amended so as to comply with section 242 of the Industrial Relations Act.

5. A declaration that the appointment of members to casual vacancies on the Committee of Management since the election conducted in 2012 are validated pursuant to section s288(3) of the Industrial Relations Act.

6. A declaration that for the years 2013 to 2015 inclusive, all acts and decisions made in relation to the management and administration of Leading Age Services Australia NSW-ACT by persons purporting to be the office bearers of the organisation during those years are to be regarded as valid and effective.

7. Such further or other orders as the Commission may deem to be appropriate.

16. The applicant relied on four affidavits of Ms Loula Koutrodimos to support this application filed, respectively, on 5 and 27 November and 11 December 2015, and 1 April 2016. Ms Koutrodimos was the Acting Executive Director of the applicant.

17. Following the grant of interim relief, the applicant filed a written submission in support of the final relief sought. This submission included the following contentions in support of that relief at paragraphs 24-27:

24. The Court should be satisfied that this is a matter where it is appropriate to make orders rectifying the invalidities identified in paragraphs 20 and 21 above, having regard to the following factors:

a. Those responsible for the invalidity have acted bona fide;

b. The invalidities did not arise as the result of a knowing and deliberate act on the part of the officers of the Applicant. They arose due to a mistaken belief that the rules of the Applicant had been amended by the Annual General Meeting held in November 2013; and

c. The officers of the Applicant, upon discovering the invalidity have taken all steps available to rectify the deficiencies and did so in an expeditious manner. The manner in which this had been dealt with has been frank and transparent both with the relevant authorities and with the members of the Applicant.

25. The Court should be satisfied that having regard to the requirements of s 288(5) of the Act, no issue of injustice relevant to the Applicant or its members arises from the orders sought in the present matter. The proposed orders are beneficial to the organisation and its members as they restore conformity, so far as practicable, with the requirements of the rules of the Applicant.

26. In this regard the Court should conclude that the members of the Applicant are content with the manner in which the Applicant is being managed and administered and the identity of the persons who are currently responsible for managing and administering the Applicant in that:

a. Members of the Applicant were given notice of these proceedings, however no member has sought to oppose any of the orders sought; and

b. In relation to the declared results for the recent election in 2016, each of the persons who were elected unopposed were the existing members of the Committee of Management as follows:

Name	Comment
ORIE, Robert	Elected February 2013
PEDEN, Ross	Elected February 2013
KRESNER, Michael	Elected February 2013
PAYNE, Cynthia	Elected February 2013
FISHER, Matthew	Invalidly appointed on 29 June 2015
DOHERTY, Lindsay	Elected February 2013
CHADWICK, Natasha	Elected February 2013
MAMARELIS, Chris	Invalidly appointed on 25 May 2015
GORDON, Steve	Elected February 2013
MANN, Andrew	Invalidly appointed on 29 June 2015
Mann, Kerry	Invalidly appointed on 2 March 2015

27. The Court should similarly be satisfied that validating the management and administration of the Applicant will not have any adverse consequences for any creditor of the organisation or any person having dealings with the organisation.

18. As a result of matters arising during the course of argument, the applicant submitted draft orders (representing a further amended application) which mirrored those outlined at [11] above.

Statutory Provisions

19. Sections 242, 245 and 288 of the Act were relevant to the determination or making of orders and are set out below.

242 Rules may provide for filling of casual vacancies

(1) The rules of a State organisation may provide for the filling of a casual vacancy in an office by an ordinary election or, subject to this section, in any other manner provided in the rules.

(2) Any such rules must not permit a casual vacancy, or a further casual vacancy, occurring within the term of an office to be filled, otherwise than by an ordinary election, for so much of the unexpired part of the term as exceeds:

(a) 12 months, or

(b) three-quarters of the term of the office,

whichever is the greater.

(3) If, under the rules, a vacancy in an office in a State organisation is filled otherwise than by an ordinary election, the person filling the vacancy must be taken, for the purposes of the relevant provisions, to have been elected to the office under the relevant provisions.

(4) In this section:

"ordinary election" means an election held under rules that comply with section 238 (Rules to provide for elections for offices).

"relevant provisions" , in relation to a State organisation, means:

(a) the provisions of this Act (other than this section), and

(b) the rules of the organisation (other than rules made under this section providing for the filling of a casual vacancy in an office otherwise than by an ordinary election).

"term" , in relation to an office, means the total period for which the last person elected to the office by an ordinary election (other than an ordinary election to fill a casual vacancy in the office) was entitled by virtue of that election (having regard to any rule made under section 241 (2)) to hold the office without being re-elected.

…

245 Alteration of rules of State organisation

(1) An alteration of the rules of a State organisation does not take effect unless the Industrial Registrar consents to the alteration.

(2) The Industrial Registrar may consent to an alteration of the rules in whole or part, but must not consent to an alteration unless satisfied that the alteration:

(a) complies with, and is not contrary to, this Act and relevant awards or orders of the Commission made under this Act, and

(b) is not otherwise contrary to law, and

(c) has been made under the rules of the organisation.

(3) The Industrial Registrar must not consent to an alteration of the rules of an industrial organisation of employees relating to eligibility for membership of the organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the Industrial Registrar, another industrial organisation of employees to which those persons might conveniently belong.

(3A) The Industrial Registrar must not consent to an alteration of the rules of an industrial organisation of employees to which Schedule 5 applies relating to eligibility for membership of the organisation (being an application for consent made before, or within 12 months after, the date of assent to the Industrial Relations Amendment (Industrial Representation) Act 2012 ) if, in relation to persons who would be eligible for membership because of the alteration there is, in the opinion of the Industrial Registrar, another organisation:

(a) to which those persons could more conveniently belong, and

(b) that would more effectively represent those persons.

(3B) However, subsection (3A) does not apply if the Industrial Registrar accepts an undertaking from the organisation that the Industrial Registrar considers appropriate to avoid disputes as to the demarcation of the industrial interests of the organisation and any other organisation that might otherwise arise from an overlap between eligibility for membership of the organisation and membership of the other organisation.

(3C) In determining under subsection (3A) whether an existing organisation would more effectively represent members than the applicant organisation, the Industrial Registrar must have regard to the resources and representative infrastructure of the applicant.

(3D) The Industrial Registrar may refuse to consent to an application referred to in subsection (3A) for consent to an alteration of the rules of an industrial organisation of employees if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act the industrial interests of a particular class or group of employees.

(4) If particulars of an alteration of the rules of a State organisation have been lodged with or recorded by the Industrial Registrar, the Industrial Registrar may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error.

(5) If the Industrial Registrar consents under this section to an alteration, the alteration takes effect on the recording of the change by the Industrial Registrar.

(6) This section does not apply in relation to an alteration of the rules of a State organisation that is:

(a) determined by the Industrial Registrar under section 244, 244A or 247, or

(b) proposed to be made for the purpose of an amalgamation under this Part.

…

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.

Relevant Principles

20. The issue raised by the application was whether the Court should make a declaration that there has been an invalidity in the management or administration of the applicant and/or in the making or alteration of its rules for the purposes of s 288(1) of the Act and, if so, whether the Court should exercise its discretion to make the orders sought by the applicant pursuant to s 288(3) and (4) of the Act.

In Liquor, Hospitality and Miscellaneous Union, New South Wales Branch [2006] NSWIRComm 244 at [13] (‘LHM Union’), the Court dealt extensively with principles applicable to such applications. I will adopt that discussion, as extracted below, for the purposes of this judgment:

The principles applicable to applications of this kind were considered by this Court in Re Seamens' Union of Australia New South Wales Branch [2001] NSWIRComm 151 (18 July 2001) in which the Court undertook a detailed review of the applicable authorities. Mr Nolan also referred the Court to two other authorities: Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch [1999] NSWIRComm 217 (delivered by Hungerford J ex tempore on 11 May 1999) and Merchant Service Guild of Australia, Queensland Branch, Union of Employees [2005] QIRComm 191 (delivered by Linnane VP ex tempore on 17 November 2005). Having considered these authorities, the applicable principles can be summarised as follows:

(a) Section 288 of the Act requires the Court to firstly consider, as a jurisdictional prerequisite, whether an invalidity has occurred in relation to the matters described in s288(1)(a), (b) or (c) of the Act;

(b) the terms of s288(3) encompass any order rectifying the invalidity declared by the Court, negating and modifying the consequences in law of the invalidity and validating acts so that, in an appropriate case, the circumstances arising from the invalidity can be “put right” and the legal consequences of those circumstances changed;

(c) the discretion residing in the Court to declare such an invalidity is wide;

(c) in considering whether to exercise that discretion, the Court must have regard to the objects of the Act and orders that are made to enable the organisation to function and operate effectively and legally will assist in achieving these objects, in particular, the object in s3(d) of the Act. Other relevant factors include the circumstances in which the invalidity arose and the actions taken upon becoming aware of the invalidity;

(d) the discretion conferred under s288(3) of the Act is extended by the provisions of s288(4) which permits the Court, in circumstances where an order is made under s288(3), to give such ancillary or consequential directions as it considers appropriate; and

(e) the discretion of the Court is, however, constrained by s288(5), which prevents the Court from making an order pursuant to s288(3) unless the Court first satisfies itself that such an order would not do a substantial injustice to the organisation, any member or creditor of the organisation, or any person having dealings with the organisation.

21. Consideration

22. Has there been an invalidity?

23. On the evidence presented by the applicant, several invalidities occurred for the purposes of s 288(1) of the Act.

24. There was an invalidity in “the making or alteration of the rules of the organisation” within the meaning of s 288(1)(c) of the Act in the purported alteration of rule 29 by the members of the applicant at the Annual General Meeting on 25 November 2015. There were two components to that invalidity.

25. First, the alteration of the rules was not filed to seek the consent of the Industrial Registrar. Section 245(1) of the Act provides that “[a]n alteration of the rules of a State organisation does not take effect unless the Industrial Registrar consents to the alteration.” Gaining consent from the Registrar for an alteration to the rules is thus a prerequisite for such a change taking legal effect. A failure to gain consent by the registrar under s 245 of the Act was held by this Court to be an invalidity for the purposes of s 288(1)(c): LHM Union at [20] (per Walton J).

26. Secondly, the purported rule change did not comply with s 242(2) of the Act which requires casual vacancies to be filled by election if the unexpired part of the term exceeds three-quarters of the term of the office. An invalidity of this nature has been considered under an analogous federal regime. In Allen and Ford v Laragy and Others (1975) 7 ALR 261 (‘Allen and Ford’) at 261-266 (per Spicer CJ, Smithers and Woodward JJ), the Australian Industrial Court held that a rule change made by an organisation registered under the Conciliation and Arbitration Act 1904 (Cth) was invalid because the rule, in substance, contravened another provision of that Act. That decision was followed by Sheppard J in Squires v Stephenson & Ors (1983) 4 IR 84, 89-90 (per Sheppard J). In both cases the finding of invalidity was deemed to enliven the jurisdiction of the respective courts under s 171C of the Conciliation and Arbitration Act, a provision which was analogous to s 288(1) of the Act. I consider that the rule change in consideration here, by contravening s 242(2) of the Act, constituted an invalidity in “the making or alteration of the rules of the organisation” as considered by s 288(1)(c).

27. The invalid rule change resulted in irregularities in the management and administration of the applicant pursuant to s 288(1)(a) and (b) which are twofold.

28. First, persons elected to offices on 4 February 2013 purported to continue to hold office after February 2015 when elections were due under the previous rule 29 before the amendment (the former rule required elections to be held every two years). Consequently, the office bearers who remained in their offices did so invalidly. This constituted an invalidity in the “election or appointment in the organisation” within the meaning of s 288(1)(b) of the Act.

29. Secondly, and as consequence of the invalidity identified above, acts and decisions made in relation to the management and administration of the applicant by persons purporting to be members of the Committee of Management and/or office bearers of the applicant for the period 1 February 2015 to 21 March 2016 (when new elections were held) were invalid. These were invalidities in “the management or administration of the organisation”, as considered by s 288(a) of the Act.

30. Amongst the actions undertaken by those purporting to be the applicant’s validly elected office bearers between 1 February 2015 and 21 March 2016, there were the purported appointments, by the committee of management, of the following persons to casual vacancies:

1. Kerry Mann on 2 March 2015;

2. Chris Mamarelis on 25 May 2015;

3. Matt Fisher on 29 June 2015; and

4. Andrew Mann on 29 June 2015.

31. This particular invalidity could be construed as an invalidity in either “the management or administration of the organisation”, s 288(a), or in the “election or appointment in the organisation”, s 288(b).

32. The purported appointment of these members to casual vacancies also contradicted rule 29(iv) of the rules (as they continued to apply), which stipulated:

A Committee member elected to fill such a casual or new vacancy shall only hold office until expiry of the original two year term of the Committee. Where a casual vacancy arises within one year of the expiry of the original two year term, the Committee may appoint any representative of any financial member to the Association to fill such casual vacancy. A Committee member appointed to fill such a casual vacancy shall only hold office until expiry of the original two year term.

33. The filling of these casual vacancies did not occur within one year of the expiry of the original two year term as that original term expired in February 2015. Thus, the casual appointments listed above were invalid under the rules.

34. These constitute reasons for order A set out in paragraph [11] above.

35. Should the Court exercise its discretion to make orders pursuant to s 288(3) and (4)?

36. Section 288(3) provides the Court with a wide discretion to determine the circumstances under which relief may be granted under this section, however according to s 288(5) the Court must not make an order under subsection (3) unless it is satisfied that 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.

37. On the basis of the applicant’s submissions and the four affidavits filed by the applicant the Court is satisfied that:

1. Those responsible for the invalidity have acted bona fide.

2. The invalidities did not arise as the result of a knowing and deliberate act on the part of the officers of the applicant. They arose due to a mistaken belief that the rules of the applicant had been amended by the Annual General Meeting held in November 2013;

3. The officers of the applicant, upon discovering the invalidity have taken all steps reasonably available to rectify the deficiencies and did so in an expeditious manner. The manner in which this had been dealt with was frank and transparent both with the relevant authorities and with the members of the applicant;

4. Members of the applicant were given notice of these proceedings, yet no member sought to oppose any of the orders sought; and

5. The management and administration of the applicant will not have any adverse consequences for any creditor of the applicant or any person having dealings with the applicant.

38. Despite sufficient notice of these proceedings being provided to the applicant’s members, as evidenced by the affidavit of Ms Koutrodimos filed by the applicant on 11 December 2015, no contradictor was present in the proceedings.

39. I am further mindful that making the orders sought would enable the applicant to function and operate effectively and legally and will assist in achieving the objects of the Act, particularly the latter half of the object in s 3(d) of the Act: “to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of these bodies” (emphasis added).

40. For the purposes of s 288(5) the Court is satisfied that the making of the orders set out in [11] above will not do substantial injustice to the applicant, any member or creditor of the applicant, or any person having dealings with the applicant.

41. In the circumstances, it is appropriate for the Court to make orders in this matter addressing the invalidities that have been declared by the Court.

42. Form of Orders

43. In my view the orders made on 25 May 2016 and set out at [11] above fall within the power given to the Court under s 288 of the Act.

44. Section 288(3) stipulates that the Court has the power to rectifying the invalidity or cause it to be rectified; to negative, modify or cause to be modified the consequences in law of the validity; or to validate any act, matter or thing rendered invalid by or because of the invalidity. Pursuant to s 288(4), “[w]here an order is made under s 288 (3) the Court may give such ancillary of consequential directions as it considers appropriate.”

45. The validation of positions held by purported office bearers and acts and decisions made in the management of an organisation are measures which fall squarely within the scope of remedial orders which can be made pursuant to s 288 (3) of the Act: The MEAA NSW. Application by The MEAA NSW for a determination of the question of an invalidity under s 288 of the Industrial Relations Act 1996 [2009] NSWIRComm 80 at [118]. Further, the validation of an invalid rule change has also been held by this Court to fall within the curative discretion that exists under s 288(3): LHM Union at [27] (per Walton AP).

46. In the circumstances, orders affecting the validation of casual appointments to the committee and the validation of acts and decisions in the management and administration of the applicant and/or office bearers of the applicant during the period 1 February 2015 to 21 March 2016 were appropriate.

47. Validating amended rule 29, however, would have entailed validating a rule that contravened a provision of the Act, namely s 242(2). Thus, an order to that effect would have perpetuated one of the deficiencies of amended rule 29. In order to prevent further invalidities deriving from reliance on amended rule 29, the Court resolved to order that rule 29 be amended in order to ensure its compliance with s 242(2) of the Act.

Decision last updated: 01 July 2016