Geneff v Peterson

Geneff v Peterson - [2010] NSWIRComm 39 - NSWIRComm 2010 case summary — Zoe

[157]

44 In relation to the failure to produce copies of the accounts and financial statements for the years 1997 to 2001 in accordance with s 518 of the 1991 Act, s 521 of the 1991 Act (preserved by s 282(3) of the 1996 Act) provides that the Industrial Registrar must inform the Court of the failure and the Court may suspend the registration of an organisation that fails to comply. 45 It is also noted that s 226(a) of the 1996 Act provides that the registration of an industrial organisation may be cancelled where the organisation has, inter alia, contravened the industrial legislation. However, the Commission is not to cancel the registration of an industrial organisation on that ground (or other grounds in s 226(b)-(c)) unless the Commission considers that it is appropriate to cancel the registration in the circumstances because of the gravity of the case: s 227(2). 46 There is no basis to believe there are grounds for suspending or canceling the applicant organisation's registration because of a failure to fulfill financial and reporting obligations for the period 1997 to 2001. The applicant organisation is a long established registered organisation in New South Wales and has made a concerted effort over the past three years to comply with the Court's orders. It would be unfair and unduly harsh to countenance suspension or cancellation because of old records that have gone missing and in respect of which no person will suffer a substantial injustice. Moreover, the evidence was that for the subject period the applicant organisation was, in fact, the same entity as its federally registered counterpart, which had lodged the necessary returns in accordance with the provisions of the Commonwealth Act. In the circumstances, the Court will take no further action in relation to the period 1997 to 2001 in respect of the failure to fulfill financial and reporting obligations under the 1996 Act. Orders 47 The Court makes the following orders effective from the date of this judgment:

[158]

(1) That the Court determines, declares and orders that invalidities have occurred in the management or administration of The Master Builders' Association of New South Wales. (2) That the Court determines, declares and orders that invalidities have occurred in elections in The Master Builders' Association of New South Wales. (3) That upon the basis of such invalidities, the Court, being satisfied that the following orders made do not do substantial injustice to The Master Builders' Association of New South Wales or to any member or creditor of that Association or to any person having dealings with the Association, orders: (a) that the effect or effects of the failure to make an application to the Industrial Registrar in 2002 and 2003 under the preserved s 444 of the Industrial Relations Act 1991 regarding the conduct of ballot for offices of the State organisation is negatived; (b) that the effect or effects of the failure to make an application to the Industrial Registrar in 2002 and 2003 under Rule 14.24.1 of the applicant organisation's rules is negatived and rectified by declaring that persons elected to office in The Master Builders' Association of New South Wales, an organisation registered under the Workplace Relations Act 1996 (Cth), in the relevant ballots conducted by the Australian Electoral Commission in years 2002 and 2003 are declared to be validly elected to the corresponding offices in the applicant organisation; (c) that any decisions made by the Executive Committee of the applicant organisation when constituted by Ron Bracken, David Donaldson, Daniel Murphy, Scott Beynon Peter Court and Bruce Edwards from 12 October 2002 to the date of this order and any actions taken by Ron Bracken, David Donaldson, Daniel Murphy, Scott Beynon, Peter Court and Bruce Edwards in the performance of their duties and functions as the Executive Committee of the applicant organisation or in conformity with decisions of the Executive Committee of the applicant organisation that would otherwise have been valid had the officers been elected in accordance with the requirements of the Industrial Relations Act 1996 are validated;

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