Gordon v Carroll and Ors, Re - [2001] NSWIRComm 151 - NSWIRComm 2001 case summary — Zoe

NSWNSWIRComm

Gordon v Carroll and Ors, Re

[2001] NSWIRComm 151

Industrial Relations Commission (NSW)|2001-07-18|Before: Walton J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2001-07-18

Before

Walton J

Source

Original judgment source is linked above.

Judgment (88 paragraphs)

[1]

CITATION : Re Seamens' Union of Australia New South Wales Branch [2001] NSWIRComm 151 PARTIES : APPLICANT: Seamens' Union of Australia, New South Wales Branch FILE NUMBER: IRC2633 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Registered organisation - Application for determination of invalidity - Alleged invalidity related to a failure to hold elections in State registered organisation - No elections held in accordance with transitional rules - Elections had been held in the federal counterpart organisation - Finding of invalidity is jurisdictional prerequisite - Principles governing determination of question of invalidity - Invalidity found in the management or administration of and an appointment in the organisation - Possible invalidity in an election in the organisation - Orders proposed to cure invalidity - Factors warranting exercise of discretion to make orders - Court satisfied that orders proposed would not do substantial injustice to the members of the union or any creditor of the union or any person having dealings with the union - Form of proposed orders varied - Declarartion made - Orders made Industrial Relations Act 1996 ss249 288 Industrial Relations (General) Regulations 1996 cl29 LEGISLATION CITED : Industrial Relations Act 1991 s445 Workplace Relations Act 1996 (Cth) Conciliation and Arbitration (Organisations) Act 1974 (Cth) s171C Australian Building Construction Employees' and Builders' Labourers' Federation, Re (1978) 46 FLR 308 Food Preservers' Union of Australia and Anor (1998) 79 ALR 138 CASES CITED : Gordon v Carroll and Ors, Re (1975) 27 FLR 129 Hardacre v Health and Research Employees' Association of New South Wales (1999) 90 IR 97 Jess v Scott (1986) 14 IR 341 HEARING DATES: 05/16/2001 DATE OF JUDGMENT: 07/18/2001

[2]

[18]

4 Section 288 of the Act is in the following terms: 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 to an invalidity occurring in relation to an association before it became an organisation.

[22]

Reference to the Court 7 The genesis of this application was a reference made by a Mr A G Musgrave, Deputy Industrial Registrar to the Court, pursuant to cl29 of the Industrial Relations (General) Regulations 1996 on 26 February 2001 in the following terms: I hereby refer to the Industrial Relations Commission in Court Session, pursuant to section 249(1) of the Industrial Relations Act 1996, clause 29 of the Industrial Relations Regulation 1996 and section 445 of the Industrial Relations Act 1991, for decision by the Industrial Relations Commission in Court Session, the following: 1. The failure by the Seamen's Union of Australia, New South Wales Branch (a State industrial organisation of employees registered or taken to be registered under Chapter 5 of the Industrial Relations Act 1996) to comply with the rules concerning elections and terms of office. Upon the following grounds and reasons: 1. The Seamen's Union of Australia, New South Wales Branch is an industrial organisation of employees registered under Chapter 5 of the Industrial Relations Act 1996 and is taken to be an industrial organisation of employees registered under Chapter 5 of the Industrial Relations Act 1996 by virtue of section 223(1) of that Act. 2. The rules of the Seamen's Union of Australia, New South Wales Branch were last certified by the Industrial Registrar on 7 August 1996 pursuant to s439 of the Industrial Relations Act 1991. 3. Rule 21 of the rules of the Union provide for transitional arrangements upon commencement of the rules under the Industrial Relations Act 1991. Rule 21.1 provides that "(t)he first election pursuant to these rules shall be held in 1995". 4. The Union did not, in 1995 or subsequently, apply in writing to the Industrial Registrar requesting that the Industrial Registrar arrange for the conduct of an election for an office in the organisation in accordance with the rules of the Union under s444 of the Industrial Relations Act 1991. 5. Although Rule 12 of the rules of the Union provides for election for officers in the State branch of the Federal

[72]

36 The Australian Industrial Court in Gordon v Carrol (at 161 - 162) described the discretion which may be exercised under s171C(2)(a) as follows: The next question is what are the powers conferred on the court in para.(a). The word "may" imports a clear discretion allowing the court to do nothing. In sequence, its next power is to "rectify" or "cause to be rectified" an invalidity. To "rectify" is to put right or to restore to a sound or healthy condition, and when one applies this meaning to "administration" or "management", then taking into account the wide meaning of "invalidity" defined inclusively in s171A , it is clear that to put right a payment without lawful authority to an officer of the organisation includes an order that repayment be made. Paragraph (a) goes on to give the court power "to negative, modify, or cause to be modified, the consequences in law of the invalidity". This power is directed to giving the court power to upset or change the legal effect of the transaction tainted with the invalidity. Thus, in certain circumstances a payment without power, for example, a payment pursuant to a mistake of law, would be irrecoverable, but these words would seem to allow the court to override the general law and make such payment recoverable. Paragraph (a) goes on to give the court power to "validate any act, matter or thing rendered invalid by or as a result of the invalidity". When one considers the possible chain of invalid acts such acts as that set out above, the scope of this power becomes clear. The court can select any events in the chain to validate or not as it thinks fit. For example, the election could be validated. The appointment of the officer could be left invalid. The act performed by the officer in the purported exercise of his powers could be validated. Paragraph (b) provides the conditions on which the court's power are to be used and par.(c) gives the court wide powers with the intention of allowing it to deal totally with the invalidity and any consequences which that invalidity may have.

Gordon v Carroll and Ors, Re

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Judgment (88 paragraphs)

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Cited By (11)