The Master Builders' Association of New South Wales [2008] NSWIRComm 159

The Master Builders' Association of New South Wales [2008] NSWIRComm 159 - NSWIRComm 2008 case summary — Zoe

[60]

Section 278 of the 1996 Act provides: 278 Records to be kept and lodged by organisations (1) A State organisation must keep the following records: (a) a register of its members, showing the name, postal address of each member and such other particulars as may be prescribed by the regulations, (b) a list of the offices in the organisation, (c) a list of the names, postal addresses and occupations of the persons holding the offices, (d) such other records as are prescribed by the regulations. (2) A State organisation must: (a) enter in the register the name and postal address of each person who becomes a member, within 28 days after the person becomes a member, and (b) remove from the register the name and postal address of each person who ceases to be a member, within 28 days after the person ceases to be a member, and (c) enter in the register any change in the particulars shown on the register, within 28 days after the matters necessitating the change become known to the organisation. (3) A State organisation must lodge with the Industrial Registrar once in each year, at such time as is prescribed by the regulations: (a) a statutory declaration by the secretary of the organisation certifying that the register of members has, during the immediately preceding calendar year, been kept and maintained as required by subsections (1) and (2), and (b) a copy of the records required to be kept under subsection (1) (b), (c) and (d), certified by statutory declaration by the secretary of the organisation to be a correct statement of the information contained in those records. (4) A State organisation must, within 28 days, lodge with the Industrial Registrar notification of any change made to the records required to be kept under subsection (1) (b), (c) and (d), certified by statutory declaration by the secretary of the organisation to be a correct statement of the changes made. (5) The records kept by a State organisation under this section must be kept at the registered office of the organisation or other place approved by the Industrial Registrar. (6) A person authorised by the Industrial Registrar may inspect, and make copies of, or take extracts from, the register of members of a State organisation, or a part of the register, at such times as the Industrial Registrar specifies. (7) A State organisation must cause its register of members, or each part of the register, to be available, at all relevant times, for the purposes of subsection (6), at the office where the register is kept, to a person authorised by the Industrial Registrar under that subsection. (8) If: (a) a member of a State organisation requests the Industrial Registrar to give a direction under this subsection, and (b) the Industrial Registrar is satisfied: (i) that the member has been refused access to the register of members, or a part of the register of members, of the organisation at the office where the register is kept, or (ii) that there are other grounds for giving a direction under this subsection, the Industrial Registrar may direct the organisation to deliver to the Industrial Registrar, before a specified day, a copy of the register certified by statutory declaration by the secretary or other specified officer of the organisation to be, as at a day specified in the certificate that is not more than 28 days before the first-mentioned day, a correct statement of the information contained in the register, for the member to inspect at the office of the Industrial Registrar. (9) If default is made in complying with a provision of this section, the organisation is guilty of an offence.

[64]

25 I find that the provisions of Rule 14.24 have not been complied with in that the applicant did not seek the approval of the Industrial Registrar that the persons elected to office in the federal organisation (also known as the Master Builders' Association of New South Wales) be validly elected to the corresponding offices of the applicant. 26 In its grounds and reasons supporting the amended application, it was stated by the applicant that: This application deals with the operations of the State organisation during the financial year ending 30 June 2007, and subsequently following the Annual Meeting of the corporate and Federally registered entity held on 11 December 2007. Matters related to financial years ending on 30 June 2006, 30 June 2005, and 30 June 2004 will be the subject of separate applications to the Court. 27 Given my findings, it follows that for the purposes of s 288(1)(b) of the 1996 Act: (1) an invalidity occurred in 2007 when the applicant failed to apply to the Industrial Registrar to conduct elections to fill offices of the applicant; and (2) an invalidity occurred in 2007 when the applicant failed to obtain the Industrial Registrar's approval under Rule 14.24.1 of the applicant's rules for persons elected to office in a related federal organisation to be validly elected to corresponding offices in the State organisation. 28 The applicant appears to concede that invalidities similar to or the same as those that occurred in 2007 also occurred in 2004, 2005 and 2006. Given the Industrial Registrar's report that there is no record of any application by the applicant to the Industrial Registrar for an election of officers since 1995, prima facie, invalidities also occurred from 1996 onwards. They will need to be addressed by the applicant. I propose to make orders in that respect pursuant to s 288(4) of the 1996 Act. 29 In relation to the invalidities in 2007, Mr Seidler deposed that the membership of The Master Builders' Association of New South Wales registered under the Workplace Relations Act 1996 (Cth) was identical to the membership of the applicant. He further deposed that the rules of the State branch of the Federal organisation relating to the election of the holders of offices comply substantially with the requirements relating to election of the holders of offices under the 1996 Act (see s 239(1)(b) of the 1996 Act). Further, that the 2007 election of office bearers of The Master Builders' Association of New South Wales registered under the Workplace Relations Act was conducted by the Australian Electoral Commission on 11 December 2007.

[72]

· no financial accounts have been lodged with the Industrial Registrar in relation to the financial years ended since 30 June 2000; and · no record has been found of any return by the applicant under s 278 of the 1996 Act for the year 2007. Section 278 of the 1996 Act requires that each State organisation must lodge a statutory declaration annually with the Industrial Registrar concerning the proper keeping of the organisation's membership register and verifying the provision of certain particulars relating to office holders. 35 Filed with the amended application was: · a certificate issued by Mr Seidler as the secretary of the applicant as required by s 518 of the 1991 Act; · a statement issued by Mr Seidler as the Executive Director of the applicant as required by s 280 of the 1996 Act; · a certificate issued by the Committee of Management of the applicant as required by s 510(1) of the 1991 Act and Regulation 59(1)(b) of the Industrial Relations Regulations 1992; · an Auditor's Report as required by s 514 of the 1991 Act and s 282(3) of the 1996 Act; · a certificate issued by the Accounting Officer of the "controlling entity", The Master Builders' Association of New South Wales (an organisation registered under the Workplace Relations Act 1996 (Cth)) purportedly as required by s 510(1) of the 1991 Act and Regulation 59(1)(a) of the Industrial Relations Regulations 1992; · a certificate dated 13 December 2007 of Mr Seidler, as secretary of The Master Builders' Association of New South Wales (an organisation registered under the Workplace Relations Act 1996 (Cth)) pursuant to s 268 of Schedule 1B of the Workplace Relations Act 1996, certifying the lodgement of financial accounts that had been presented to the Association's Annual General Meeting of members held on 11 December 2007; · the Annual Report of The Master Builders' Association of New South Wales (an organisation registered under the Workplace Relations Act 1996 (Cth)) presented to the Association's Annual General Meeting held on 11 December 2007 and containing that Association's financial accounts and those of its controlled entities for the financial year ended 30 June 2007; and · the financial report to members of The Master Builders' Association of New South Wales (an organisation registered under the Workplace Relations Act 1996 (Cth)) for the year ending 2007. 36 What I gather from a reading of the amended application and Mr Seidler's affidavit of 20 May 2008 is that whilst the audited accounts filed with the application in respect of the 2007 year were the accounts of The Master Builders' Association of New South Wales, which is an organisation registered under the Workplace Relations Act 1996 (Cth): (i) The membership roll, offices, and accounts of the State organisation [the applicant] are common to those of the entity registered under the Workplace Relations Act 1996. (ii) Over the period of the invalidities in the management and administration of the State organisation covered by this application, the entity registered under the Workplace Relations Act 1996 operated in accordance with the requirements of the Workplace Relations Act 1996, and in accordance with the requirements of the Corporations law. 37 In other words, what the applicant was submitting was that, as the federal organisation had satisfied the requirements of the federal legislation regarding its financial accounts and given the federal organisation was, for all intents and purposes the same as the applicant, the Court should accept that as the necessary certificates, statements and reports had been filed in this matter the legislative requirements relating to financial accountability had been satisfied, at least in relation to the 2007 financial year. 38 There can be no doubt that an invalidity has occurred in the management or administration of the organisation by the failure of the applicant to lodge the necessary financial accounting documentation with the Industrial Registrar. I find that an invalidity occurred pursuant to s 288(1)(a) of the 1996 Act in relation to 2007. 39 I must say, however, I have some reservations about rectifying the invalidity by accepting the financial accounting documentation filed with the amended application. The financial accounts set out in the Annual Report and Report to Members relate exclusively to the federal organisation and its controlled entities. Nowhere in those documents is reference made to the applicant. Nevertheless, it was stated that the accounts, certificates and auditor's reports relate to the applicant and the material filed appears to me to comply with the legislative requirements regarding financial accountability. 40 The applicant appears to have overlooked in its amended application the terms of an order that seeks to rectify the failure to lodge financial accounting documentation for 2007. However, I will make the necessary orders in accordance with the requirements of s 288 of the 1996 Act, noting in particular s 288(5). The applicant will need to address the years prior to 2007. 41 I note, in passing, that s 520 of the 1991 Act was preserved. That section is in the following terms:

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520 Waiver of requirement to lodge reports etc. (1) An organisation may apply to the Industrial Registrar for exemption from the requirement under section 518 that the organisation must lodge specific documents with the Industrial Registrar if the organisation has lodged documents that comply with the requirement of section 280 of the Industrial Relations Act 1988 of the Commonwealth and that are also substantially in accordance with the requirements of this Act. (2) On being satisfied by the organisation that it is not appropriate that the organisation should be required to lodge specific documents with the Industrial Registrar under section 518, the Industrial Registrar may issue to the organisation a certificate to that effect specifying the document or documents that need or need not be lodged by the organisation with the Industrial Registrar for the financial year specified in the certificate and, on issue of the certificate, section 518 applies to the organisation as modified by the certificate. 42 I further note, however, that no certificate has ever been issued under s 520. Moreover, there may be some doubt about the efficacy of the provision and how it fits with Pt 5 of Ch 5 of the 1996 Act, which deals with the regulation of industrial organisations other than State organisations. 43 There is one final matter and it is that on 11 April 2008 Mr Seidler filed a statutory declaration pursuant to s 278(3) of the 1996 Act. In his affidavit of 17 June 2008 Mr Seidler deposed as to certain changes to office holders, in that Mr Beynon and Mr Bracken vacated the office of Vice-President in February 2008 and the casual vacancies were filled by Messrs Mitchell and Maginnity following a Council of Management meeting on 12 February 2008. 44 This may have addressed that invalidity that occurred in relation to a failure to comply with s 278 in respect of the 2007 year, but it does not address the years prior to 2007 when the applicant appears to have failed to have lodge a statutory declaration annually with the Industrial Registrar concerning the proper keeping of the organisation's membership register and verifying the provision of certain particulars relating to office holders. This failure will need to be addressed by the applicant.

[74]

45 The Court makes the following orders effective from the date of this judgment: (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 2007 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 2007 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 a ballot conducted by the Australian Electoral Commission on 11 December 2007 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 Daniel Murphy, Gordon Leggett, Martin Patience, Peter Court, Ron Bracken and Scott Beynon from 11 December 2007 to the date of this order and any actions taken by Daniel Murphy, Gordon Leggett, Martin Patience, Peter Court, Ron Bracken and Scott Beynon 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; (d) that any decisions taken by the Council as constituted by persons declared to be elected to the Council by this order along with any actions taken by those persons so declared to be elected that would otherwise have been valid had the officers been elected in accordance with the requirements of the Industrial Relations Act 1996 are validated; (e) that the actions of the applicant organisation in filing audited accounts for the financial year ended 30 June 2007 are validated; (f) that the effect of the applicant organisation's failure in 2007 to lodge a statutory declaration annually with the Industrial Registrar concerning the proper keeping of the organisation's membership register and verifying the provision of certain particulars relating to office holders pursuant to s 278 of the Industrial Relations Act 1996 is negatived and rectified by the statutory declaration filed by Brian Seidler on 11 April 2008 concerning particulars of office holders of the organisation and the affidavit sworn by Mr Seidler on 17 June 2008 in these proceedings; (g) that the applicant organisation takes all necessary steps within three months of the date of this judgment to address any invalidity which may have occurred in an election in the organisation prior to the year 2007; (h) that the applicant organisation takes all necessary steps within three months of the date of this judgment to file audited accounts for those years prior to 2007 when no such accounts were filed; and (i) that the applicant organisation takes all necessary steps within three months of the date of this judgment to file the necessary statutory declarations pursuant to s 278(3) and s 278(4) of the Industrial Relations Act 1996 in respect of those years prior to 2007 when statutory declarations were not filed by the applicant organisation.

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