National Meat Association of New South Wales and Anor [2008] NSWIRComm 33

National Meat Association of New South Wales and Anor [2008] NSWIRComm 33 - NSWIRComm 2008 case summary — Zoe

[16]

The Court orders that: A. On the facts before it, the Court determines, declares and orders that invalidities have occurred in the management or administration of and elections in the National Meat Association of New South Wales ('the union'). B. That upon the basis of such invalidities, the Court, being satisfied that the orders made herein do not do substantial injustice to the union or to any member or creditor of the union or to any person having dealings with the union, orders: 1. That Messrs B. Ashton, G. Edmonds, P. Hummerston, N. Roberts, R Stapleton, J. Woolridge,, C. Wright, and T. Wright continue in office to enable and allow the facilitation and calling and holding of a General Meeting of members, and 2. Messrs Hummerston and Roberts continue to hold the office of Secretary and President respectively for the purposes outlined in order 1 above, and 3. If such General Meeting decides upon dissolution of the union, all or any of the aforesaid named persons be allowed to take any necessary steps associated with such dissolution resolutions in accordance with rules of the union and the legislation. 4. That the actions of the union in filing audited accounts for the years ended 31 December 2004 and 2005 be validated. 5. That the union takes the necessary steps to file audited accounts for the years ended 31 December 2006 and 2007. 4 This is an unusual application because the applicants sought the aforementioned orders so as to commence a series of processes that would, if successful, dissolve the NMA. If the orders are made by this Court, the relevant officers of the NMA propose to call a General Meeting of the members of the organisation to consider resolutions which, if carried, would lead to the dissolution of the organisation and the concurrent registration of a related federal organisation as a State Organisation. Unless there is a validation order made those future intended processes cannot be undertaken, as there will not be officers (or governing bodies) capable of bringing forward those initiatives.

[21]

Submissions and evidence of applicants 8 The current registered rules of the NMA, which were certified on 28 May 1996 provide for the NMA's overall management and administration. The rules relevantly provide as follows: i) Elections of a Committee every 3 years. The organisation may apply to the Industrial Registrar to appoint a person to conduct elections other than the person referred to in the Act: Rule 26 ii) The election of an Executive Committee every 3 years from the members of the Committee: Rule 27 iii) The management affairs of the NMA to be vested in the Executive Committee or the officers of the Executive Committee subject to, inter alia, General meetings: Rule 28 iv) The Executive Committee shall meet at least once a year: Rule 38 v) There shall be General Meetings of members: Rule 49 vi) A General Meeting of members may be called by the President, Executive Committee, Committee or by a general meeting of members: Rule 50 vii) The keeping of proper accounting records, preparation of accounts, appointment of auditor and auditing of accounts: Rules 65 to 68. viii) For By-Laws of the Country Meatworks Association of New South Wales including elections and meetings: Schedule One to the Rules. ix) The dissolution of the organisation: Rule 84 9 The applicants led evidence, by affidavit, from the President, Neil Roberts and the Vice-President, Peter Hummerston. That evidence disclosed that the NMA had failed to comply with the aforementioned Rules or steps required of the organisation under the Act as follows: a) No elections had occurred since 2001. b) General meetings had not been called. c) There had not been conducted annual meetings and elections of the Country Meatworks Association, as prescribed in the By-Laws of the NMA since at least 2002. d) The annual audited accounts for the period ended 2004 and 2005 were filed late. 10 It was submitted that these failures constituted invalidities in the management and administration of the NMA as well as elections in the organisation all of which had occurred since 2002.

[34]

23 The following factors are relevant to the exercise of the Court's discretion in this matter: a) there were unfortunate circumstances and events that precluded the holding of elections during 2004 and thereafter. The NMA lost its executive officer due to ill health in 2002. Additionally the consuming administrative arrangements concerning the amalgamation of the federal industrial organisation affected the operation of the NMA, due to the dual membership of the NMA office holders. b) the invalidities did not arise because of mala fides of persons within the NMA. The Court considers that the NMA has pursued this application openly and has addressed the invalidities in good faith. c) on any scenario, the members of the NMA will continue to require representation of their industrial interests under the Act. There is a case for continuing representation of these bodies through the NMA or any new organisation which might replace it. d) to grant the orders sought by the applicants would be consistent with the objects of s 3(d) of the Industrial Relations Act as it would encourage the proposed application/registration (or part thereof) of a federal organisation as permitted. It would also encourage the participation in industrial relations by the NMA. e) it is likely that rectification of the invalidities would also allow those responsible within the NMA to call a general meeting and enable them to proceed in an effective and legal manner to implement actions to dissolve the organisation and re-register an appropriate organisation. 24 In view of these considerations, subject to dealing with the requirements of s 288(5), I consider that it is appropriate for the Court to make orders in this matter addressing the invalidities declared by the Court. The NMA has acted honestly in connection with the invalidities, the invalidities arose from inadvertence and addressing the invalidities would allow the NMA to function effectively and legally. Appropriate orders would also achieve the objects of the Act, in particular, the object contained in s 3(d) to encourage the responsible management of representative bodies of employees.

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