Musicians' Union of New South Wales [2009] NSWIRComm 45

CATCHWORDS: REGISTERED ORGANISATION - Reference by Industrial Registrar for cancellation of registration - Failure to conduct elections - Failure to lodge accounts - Registration cancelled

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Musicians' Union of New South Wales, Re [2008] NSWIRComm 133

APPLICANT: Mr G M Grimson Industrial Registrar LEGAL REPRESENTATIVES: INTERESTED PARTY: Mr T Noone The Musicians' Union of Australia

CORAM: BOLAND J, President WALTON J, Vice-President STAFF J

Reference by the Industrial Registrar to the Industrial Court of New South Wales pursuant to s 249(1) of the Industrial Relations Act 1996, clause 31 of the Industrial Relations (General) Regulation 2001 and sections 445 and 521 of the Industrial Relations Act 1991 as preserved by section 282(3) of the Industrial Relations Act 1996

1 On 2 April 2009, the Full Bench made orders cancelling the registration of The Musicians' Union of New South Wales ("the Union") as follows: 1. Pursuant to s 227(1) of the Industrial Relations Act 1996, the registration of the Musicians' Union of New South Wales is cancelled. 2. Order 1 hereof shall take effect on and from seven days after today, 2 April 2009.

What follows are the Full Bench's reasons for decision. 2 The cancellation of the Union's registration as an industrial organisation of employees followed an application by notice of motion filed on 25 July 2007 by G M Grimson, Industrial Registrar, ("the applicant"), for a cancellation order pursuant to s 225(1) of the Industrial Relations Act 1996 ("the Act"). 3 The grounds and reasons in support of the application were as follows: 1. That the said industrial organisation has contravened industrial relations legislation under s 226(a) of the Act in that: (a) elections have not been conducted by The Musicians' Union of New South Wales in accordance with s 249 of the Act and clause 31 of the Industrial Relations (General) Regulation 2001; and (b) accounting records and other financial statements have not been lodged with the Industrial Registrar pursuant to s 282 of the Act 2. Such other grounds and reasons as the Industrial Court thinks fit. Background 4 The factual background to the application for cancellation was contained in a supplementary affidavit filed by Mr Grimson on 16 March 2009. What follows is drawn from that affidavit. 5 On 20 August 2007, the matter came before the Vice-President of the Commission for directions. On that date the matter was stood over for further directions to 10 September 2007 "unless within a period of 14 days the respondent to the Notice of Motion filed and served any application it intends to bring by way of validation proceedings". 6 On 3 September 2007 the Union filed an application "for a determination of the question of an invalidity under s 288 of the Industrial Relations Act 1996" (Matter No IRC 2007/1438). 7 On 10 September 2007, both matters were before the Vice-President for directions. In relation to Matter No IRC 2007/1438 various directions were made in relation to the filing and serving of documentation and both matters were stood over for further directions until 1 November 2007. On 1 November 2007, following the directions hearings, Matter No IRC 2007/1438 was forwarded to the President for re-allocation to a Member for hearing and Matter No IRC 2007/999, at the Registrar's request, was stood over generally pending determination of the first-mentioned matter. 8 Matter No IRC 2007/1438 was reallocated to Staff J (Re Musicians' Union of New South Wales [2008] NSWIRComm 133) and, after hearings on 23 and 24 June 2008, the Court made the following orders on 11 July 2008: 1. On the facts before it, the Court determines and declares and orders that: (a) an invalidity has occurred in the management or administration of the Musicians' Union of New South Wales in that the organisation failed to apply in writing to the Industrial Registrar to arrange for the conduct of an election for all office bearers of the organisation which was due in 2005 in accordance with the organisation's Rules; and (b) an invalidity has occurred in the management or administration of the Musicians' Union of New South Wales in that the organisation failed to inform the Industrial Registrar of the need for an election and request that he advise the Electoral Commission of New South Wales, who shall appoint a Returning Officer. 2. That upon the basis of such invalidity, the Court, being satisfied that these orders do not do substantial injustice to the organisation, or to any member or creditor of the organisation or to any person having dealings with the organisation orders that the Musicians' Union of New South Wales shall conduct an election for offices, which shall be held and declared on or before 31 December 2008. That election, so held, shall be conducted by the Electoral Commissioner of New South Wales in accordance with the Rules of the Musicians' Union of New South Wales. Such elections shall comprise all offices specified in r 15 of the Rules of the applicant organisation and shall constitute, for all relevant purposes, the holding of any election required by r 15 of the Rules of the Musicians' Union of New South Wales. 3. Any applications made by officers of the applicant organisation for and on behalf of the applicant organisation to the date of this judgment, shall be valid for the purposes of the Rules of the applicant organisation. 4. Any decisions made by the Committee of Management of the applicant organisation when constituted by any of John Greenan, John Conley, Jim Piesse, Leon Gaer, Frederick Hill and James Shaw during the period 2005 to date of this judgment and any acts taken by John Greenan, John Conley, Jim Piesse, Leon Gaer, Frederick Hill and James Shaw in the performance of their duties and functions as Secretary of the applicant organisation, or in conformity with decisions of the Committee of Management of the applicant organisation are validated. 5. Pending the declaration of the election referred to in order 2, John Greenan, John Conley, Jim Piesse, Leon Gaer, Frederick Hill and James Shaw, shall constitute the Committee of Management of the applicant organisation. 6. The person elected to the position of Secretary shall, within 28 days of being elected to that position, meet with the Committee of Management of the Musicians' Union of New South Wales and discuss its failure to file accounting records and other financial statements with the Industrial Registrar. The Secretary shall report to me no later than 14 days after meeting with the Committee of Management and advise what the applicant organisation proposes to do in respect of its obligations to file accounting records and other financial statements with the Industrial Registrar. This part of the application is therefore adjourned to a date to be fixed. 9 Due to the failure by the Union to comply with the orders of the Court, Matter No IRC 2007/1438 was re-listed before the Court on 16 December 2008. At the hearing on that date Mr Robert Ruhle appeared on behalf of the Union and Mr Terry Noone appeared on behalf of the Musicians' Union of Australia. During the course of that hearing Mr Ruhle indicated to the Court, in part, that the invalidity in relation to elections was "incurable" and, secondly, that the Union would not oppose the Industrial Registrar's application for cancellation of its registration. Following that hearing, an application was filed by Mr Noone on behalf of the Musicians' Union of Australia (Sydney Branch) for registration of a Federal industrial organisation of employees.

10 On 3 February 2009, both Matter Nos IRC 2007/999 and 2007/1438 were listed before the Court for further directions. On that date Mr Mark Ryan appeared for the Media Entertainment and Arts Alliance (Federal Branch) to mention the matter on behalf of Mr Ruhle for the Union who was unavailable through illness to attend. Mr Noone appeared for the Musicians' Union of Australia. The matters were stood over until 26 February 2009 for further directions and orders.

11 On 16 February 2009, correspondence was forwarded to the Musician's Union of Australia advising that its application for registration as an industrial organisation of employees had been approved in principle and that confirmation of registration was conditional upon cancellation of the registration of the Union. 12 On 26 February 2009, both matters (2007/999 and 2007/1438) were again listed before the Court for directions. There was no appearance of any other parties to the proceedings. However, correspondence was received from Mr Ryan of the Media Entertainment and Arts Alliance indicating that the Union had no objection to the cancellation of the Musicians' Union of New South Wales and would not be opposing the registration of the Musicians' Union of Australia (Sydney Branch). 13 On 26 February 2009, the Court noted the non-compliance by the Musicians' Union of New South Wales with the validation orders made on 11 July 2008 and those proceedings were dismissed (IRC 2007/1439). On the same date these proceedings (IRC 2007/999) were referred to a Full Bench for hearing and further directions relating to such hearing were made. The fact that an application to cancel the Union's registration had been made and was listed for hearing before a Full Bench on 2 April 2009 was advised to the Union, the Musicians' Union of Australia, the Media Entertainment and Arts Alliance, State peak councils and was broadcast generally by way of an announcement on the Commission's website. 14 In the proceedings before the Full Bench on 2 April 2009 Mr Noone appeared for the Musicians' Union of Australia and indicated that he had no objection to an order cancelling the Union's registration. Apart from Mr Grimson, there were no other appearances. Consideration

15 Section 225(1) of the Act provides that with the leave of the Commission, a person who has a sufficient interest in the matter may apply to the Commission for the cancellation of the registration of an industrial organisation. The Industrial Registrar is such a person and leave is granted. 16 Section 226(a) provides that the registration of an industrial organisation may be cancelled on the ground: (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,

… 17 Section 249 of the Act provides: (1) The regulations may make provision for or with respect to the election of officers of State organisations. (2) Any such regulations may deal with any of the matters dealt with in Division 4 of Part 9 of the Workplace Relations Act 1996 of the Commonwealth in connection with the election of officers of organisations registered under that Act. The regulations may adopt the provisions of that Part, with or without modification.

18 Clause 31 of the Industrial Relations (General) Regulation 2001 provides: Other provisions relating to elections (1) This clause applies until the regulations under the Act otherwise provide. (2) The provisions of sections 442-451 of the 1991 Act (and the regulations under those provisions) apply to a State organisation as regulations made under section 249 of the Act. 19 Sections 442-451 of the Industrial Relations Act 1991 ("the 1991 Act") provide that election for offices of an industrial organisation are compulsory and set out provisions governing elections. 20 Section 282 of the Act provides as follows: (1) The Regulations may make provision for or with respect to the accounts and audit of industrial organisations.

(2) Any such regulations may deal with any of the matters dealt with in Division 11 of Part 9 of the Workplace Relations Act 1996 of the Commonwealth in connection with the accounts and audit of organisations registered under that Act. The regulations may adopt the provisions of that Division, with or without modification.

(3) Until any such regulations are made, the provisions of Subdivision 2 of Division 8 of Part 3 of Chapter 5 of the Industrial Relations Act 1991 (and the regulations under those provisions) apply to a State organisation as regulations made under this Division.

21 With no such regulations fitting the description in s 282(1) under the Act in existence, s 282(3) operates to preserve the relevant provisions in the 1991 Act (Subdivision 2 of Div 8 of Pt 3 of Ch 5). Section 518 of the 1991 Act relevantly provides:

(1) An organisation must, within the period prescribed by the regulations after the meeting referred to in section 517(5) or (6) (whichever is applicable) lodge with the Industrial Registrar: (a) copies of the report, accounts and other statements presented to the meeting; and

(b) a certificate by the secretary, or other officer prescribed by the regulations, of the organisation that the documents lodged are copies of the documents presented to the meeting. ...

(10) An organisation must not fail to comply with this section.

22 Under s 518(1) of the 1991 Act the "period prescribed by the regulations" is 14 days after the relevant meeting, as outlined in cl 64 of the Industrial Relations Regulation 1992. The relevant "meeting" referred to in s 518(1) and cl 64 is a "general meeting of the members of the organisation or a meeting of the committee of management of the organisation".

23 As Staff J found in Re Musicians' Union of New South Wales, the Union, a registered industrial organisation of employees, had contravened the industrial legislation in that it failed to conduct elections in accordance with the Act and Regulation. His Honour found that failure constituted an invalidity and made orders to remedy the invalidity. The Union failed to comply with those orders and the Court was advised the invalidity was incurable. The Court was also advised that the Union did not object to the cancellation of its registration. 24 We find that ground 1(a) of the notice of motion has been made out. 25 Staff J did not make orders in relation to the Union's failure to file accounts and other financial statements but it is plainly the case that with the Union's failure to comply with his Honour's orders regarding the invalidity associated with the failure to conduct elections, the Union did not, as his Honour required, advise what it proposed to do in respect of its obligations to file accounting records and other financial statements with the Industrial Registrar. No such records or statements were filed pursuant to s 282 of the Act. We find that ground 1(b) of the notice of motion has been made out. 26 We are satisfied that there are proper grounds, having regard to the gravity of the failures in contravention of s 226(a), to cancel the registration of the Union pursuant to s 227 of the Act, which provides: (1) The Commission may cancel the registration of an industrial organisation if the Commission considers that a ground for cancellation has been established. (2) However, the Commission is not to cancel the registration of an industrial organisation on a ground referred to in section 226 (a)-(c) unless the Commission considers that it is appropriate to cancel the registration in the circumstances because of the gravity of the case. 27 We have considered whether supplementary orders should be made concerning the liability of the Union for a debt owed in relation to rent on premises. However, we accept the submission made by Mr Grimson that no such order is required in this case, having regard to s 228(2) of the Act and the non-appearance of the creditor. 28 We confirm the orders made on 2 April 2009. ______________________________

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