Re: Printing and Allied Trades Employers Association of New South Wales
[2014] NSWIC 6
•03 December 2014
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Industrial Court
New South Wales
Case Title: Re: Printing and Allied Trades Employers Association of New South Wales Medium Neutral Citation: [2014] NSWIC 6 Hearing Date(s): 12 November and 1 December 2014 Decision Date: 03 December 2014 Before: Boland AJ Decision: I make the following orders:
(1) The registration of the Printing and Allied Trades Employers Association of New South Wales, an industrial organisation of employers, is cancelled pursuant to s 226(a) and (g) of the Industrial Relations Act 1996.
(2) Order (1) hereof shall take effect from 1 December 2014.
Catchwords: CANCELLATION OF REGISTRATION - Notice of Motion by Deputy Industrial Registrar to cancel registration of Printing and Allied Trades Employers Association of New South Wales, an industrial organisation of employers - Contravention of various legislative provisions relating to election of office holders and lodgement of accounting and other financial records - Organisation defunct - Application granted - Registration cancelled Legislation Cited: Industrial Arbitration Act 1901
Industrial Relations Act 1996
Industrial Relations Amendment (Industrial Court) Act 2013
Industrial Relations (General) Regulation 2001Cases Cited: Re: Printing and Allied Trades Employers' Association of New South Wales [2008] NSWIRComm 96 Category: Principal judgment Parties: Industrial Registrar (Applicant)
Printing and Allied Trades Employers Association of New South Wales (Respondent)File Number(s): IRC 780 of 2014
JUDGMENT
On I December 2014, I made an order cancelling the registration of the Printing and Allied Trades Employer Association of New South Wales (PATEA or the Association), an industrial organisation of employers registered under ch 5 of the Industrial Relations Act 1996 (the Act). What follows are my reasons for making the order.
On 3 November 2014, the Court was provided with a copy of a Report by the Industrial Registrar pursuant to s 249(1) of the Act, cl 31 of the Industrial Relations (General) Regulation 2001 and s 445 of the Industrial Relations Act 1991 (the 1991 Act) regarding a failure by PATEA to comply with its registered rules and the relevant statutory provisions concerning the election of office holders and the terms of office. The report was also made pursuant to s 521 of the 1991 Act preserved by s 282(3) of the Act regarding the failure of PATEA to comply with relevant statutory provisions concerning the preparation, certification, audit, distribution, presentation and lodgement of financial accounts.
The Court was also notified of the failure of PATEA to comply with statutory requirements concerning the provision to the Industrial Registrar of particulars relating to office holders required under s 278 of the Act.
The Report indicated that:
(1)There is no record of any further applications to the Industrial Registrar relating to the election of office holders of the organisation lodged since then [2008].
(2)The last financial statements and accompanying certificates to be lodged by or on behalf of the Association with the Industrial Registrar in compliance with the Act were for the financial year ended 31 December 2010.
(3)No record has been found of any return lodged by the Association under s 278 of the Act since March 2011.
The subject matter of the Report, which was served on PATEA, was listed for directions on 12 November 2014. PATEA indicated it was a "moribund or defunct" organisation. PATEA had no objection to its registration being cancelled. PATEA was requested to file affidavits regarding the state of its affairs including assets, liabilities and membership. With the agreement of PATEA, orders were made in the following terms:
1. That a Notice of Motion and supporting affidavit seeking the cancellation of the industrial organisation known as Printing and Allied Trades Employers Association of New South Wales be filed and served on or before 28 November 2014.
2. That Matter No 780 of 2014 be relisted before me for further directions on Thursday, 4 December 2014 at 10am.
3. That service on the said industrial organisation is dispensed with pursuant to r 18.2(2)(c) of the Uniform Civil Procedure Rules 2005, providing that the Industrial Registrar causes a copy of the Notice of Motion and affidavit in support to be forwarded to the registered offer of the said Printing and Allied Trades Employers Association of New South Wales.
A notice of motion was filed by the Deputy Industrial Registrar on 20 November 2014 together with an affidavit in support by the Deputy Industrial Registrar. The motion sought the cancellation of PATEA's registration on the ground that it had 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 clause 31 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.
An affidavit of Nancy Abeyakoon, Financial Controller of the Printing Industrial Association of Australia (PIAA) was filed on 1 December 2014. Ms Abeyakoon deposed that:
(1)The last audited financial reports lodged with the Registrar were for the year 1 January 2009 to 31 December 2009.
(2)PATEA did not engage in any trading.
(3)Due to the dissolution of the New South Wales Regional Council of PIAA in 2010 that resulted in the effective dissolution of the executive committee of PATEA no further financial statements were able to be approved by the executive committee to enable them to be lodged.
(4)There were no current assets or current liabilities in PATEA accounts.
An affidavit of William John Healey was also filed on 1 December 2014. Mr Healey is the Chief Executive Officer of PIAA. Mr Healey deposed as follows:
...
2. I write this affidavit in support of Deputy Industrial Registrar's notice of motion seeking the cancellation of the Industrial organisation known as [PATEA].
3. As part of my role at PIAA, I am also the NSW State Manager. It is my understanding that this role historically encompassed the administrative and secretarial roles of [PATEA].
4. PATEA is a moribund organisation.
5. In 2010, the federal registered industrial organisation [PIAA] applied to the federal Fair Work Commission to alter its rules to delete regional councils and officer bearers. The application was approved....
6. However, in New South Wales, that federal organisation rule change resulted in effectively dissolving the NSW Regional Council of PIAA, whose members also held concurrent roles as PATEA executive committee members.
7. To the best of my knowledge and understanding, it would appear upon the effective change of the PIAA rules, the executive committee did not go about dissolving PATEA pursuant to rule 53 - Dissolution of the Association, of the PATEA Constitution or in any other way addressing the ongoing state of PATEA and/or its executive committee.
8. This resulted in the present situation whereby PATEA cannot dissolve itself using its own rules.
9. On 11 June 2013, I wrote to the NSW Industrial Relations Commission, Industrial Organisations Officer, Jeff Folley, to advise that the Federal Organisation structure had changed in that regional councils were abolished and therefore there was no governing body or office holders specific to New South Wales.
10. I have received correspondence from the NSW Industrial Relations Commission regarding failure to file appropriate returns in relation to the election of office bearers. However, given the Constitution of PATEA and surrounding circumstances, all considered options to overcome fell to impasse given that there was no appropriately constituted executive committee to make a determination regarding the future of PATEA.
11. PATEA holds no assets and no liabilities. It is a dormant trading (sic) entity.
12. I attach the minutes of the last meeting of PATEA....
Consideration
Prior to amendments to the Act by the Industrial Relations Amendment (Industrial Court) Act 2013 (which took effect on 20 December 2013), functions relating to proceedings for the cancellation of the registration of industrial organisations, were to be exercised only by a Full Bench of the Commission in Court Session: s 153(2). Since the amendment, a single judicial member may exercise those functions.
I note that in 2008 I made validation orders in relation to invalidities occurring in the conduct of elections of office holders in PATEA between 15 December 1995 and 26 February 2008: see Re: Printing and Allied Trades Employers' Association of New South Wales [2008] NSWIRComm 96. At [18] I stated:
[18] I accept the evidence of Mr Fuller in relation to the applicant's high turnover of General Managers, and the submission by Mr Watson, that this resulted in a less thorough understanding of the applicant's Constitution and its requirements. I also accept that PATEA has been, for the relevant period, administered by the NSW PIAA Regional Council of office bearers, all of whom are or were elected to such positions in a fair, detailed and transparent process pursuant to the terms of the PIAA Rules. Further, it is accepted that failure of those responsible to adhere to the PATEA Constitution appears to have been as a result of mere oversight and inadvertence and not for any improper purpose. There was no evidence that the applicant or its officers conducted themselves other than in a bona fide manner.
Following the validation orders in 2008 PATEA continued to fail to comply with its obligations under the Act by failing to make applications to the Industrial Registrar relating to the election of office holders of the organisation from 2009 onwards and failing to lodge financial statements and accompanying certificates with the Industrial Registrar from 2011 onwards. The failure to comply could surely not be because of further oversight or inadvertence or lack of understanding given the 2008 proceedings. One wonders about the competence of the administration and management of the organisation over the relevant period.
It is a somewhat sad reflection that an organisation that first registered under the Industrial Arbitration Act 1901 on 5 March 1902 as an industrial union of employers would go out of existence in such a dismal fashion.
In any event, I am satisfied on the uncontested evidence that the motion to cancel PATEA's registration should be granted. The organisation is effectively defunct and has been since at least 2010. It has failed to conduct elections, failed to lodge accounting records and other financial statements and failed to lodge statutory declarations relating to the particulars of office holders, all in contravention of the requirements of the Act and Regulation. The organisation has no assets or liabilities and performs no function under the Act.
Section 226(a) and (g) of the Act provide:
The registration of an industrial organisation may be cancelled on any one or more of the following grounds:
(a) that the organisation, or a substantial number of its members, has or have contravened the industrial relations legislation, any industrial instrument, or any order of the Commission,
...
(g) that the organisation is defunct,
...
Accordingly, I have decided to cancel the registration of PATEA.
Orders
I make the following orders:
(1)The registration of the Printing and Allied Trades Employers Association of New South Wales, an industrial organisation of employers, is cancelled pursuant to s 226(a) and (g) of the Industrial Relations Act 1996.
(2)Order (1) hereof shall take effect from 1 December 2014.
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