The Master Builders' Association of New South Wales (No 2) [2009] NSWIRComm 108

The Master Builders' Association of New South Wales (No 2) [2009] NSWIRComm 108 - NSWIRComm 2009 case summary — Zoe

[61]

In terms of Rule 14.24.1 of the State Organisation's rules: - (a) The membership of The Master Builders Association of New South Wales registered under the Workplace Relations Act 1996 is identical to the membership of The Master Builders Association of New South Wales registered under the Industrial Relations Act 1996. (b) Offices of President, Deputy President and four Vice Presidents forming the Executive Committee created under Rule 18 of The Master Builders Association of New South Wales registered under the Workplace Relations Act 1996 are identical to those offices of President, Deputy President and four Vice Presidents forming the Executive Committee created under the Rule 18 of The Master Builders Association of New South Wales registered under the Industrial Relations Act 1996. (c) In other respects the rules of The Master Builders Association of New South Wales registered under the Industrial Relations Act 1996 relating to the election of members of the Council of Management and the Executive Committee under Rules 14 and Rule 18 respectively comply substantially with those relating to the election of members of the Council of Management and the Executive Committee under Rules 14 and Rule 18 respectively under the rules of The Master Builders Association of New South Wales registered under the Workplace Relations Act 1996. (d) The name of the organisation registered under the Workplace Relations Act 1996 is the same as the name of the State organisation registered under the Industrial Relations Act 1996. (e) Relevant extracts of the respective rules are attached as Attachment 1 and Attachment 2 to this Affidavit. (f) The 2004 elections of office bearers of The Master Builders Association of New South Wales registered under the Workplace Relations Act 1996 were conducted by the Australian Electoral Commission on 12 October 2004, 10 December 2004, 22 December 2004 and 10 February 2005 as Attachment 3. (g) No separate ballot has been conducted to fill offices of the State organisation.

[80]

12 Rules 14.3, 18.2, 18.4 of the applicant's Rules provide that offices of the President, the Deputy President, the Vice-Presidents and the remaining members of the Council of Management shall be elected annually. I also note sub-rules 14.24.1 and 14.24.2 which state: 14.24.1 At least One month prior to an election the President shall provide the Industrial Registrar with a Statutory Declaration stating, if it be the case, that the membership of the New South Wales Branch of the Master Builders Association of New South Wales registered under the Industrial Relations Act 1988 (the NSW Branch) and the membership of the Association are identical. At this time the President shall also provide the Industrial Registrar with a copy of the Rules of the NSW branch relating to the elections of the holders of offices and seek the Approval of the Industrial Registrar that the persons elected to office in the NSW branch be validly elected to the corresponding offices of the Association. 14.24.2 Should the Industrial Registrar grant such approval, the persons elected to offices of the NSW Branch shall be taken to be validly elected to the corresponding offices of the Association. 13 The reference in the above sub-rules to 'Association' is a reference to the applicant, whilst the reference to 'the New South Wales Branch of the Master Builders' Association of New South Wales' is a reference to the State branch of an organisation registered under Federal industrial legislation. 14 Attached to the applicant organisation's applications under s 288 of the Act were the following documents: 1. Certificates of Secretary or other Authorised Person under s 268 of Schedule 1B of the Workplace Relations Act 1996 (Cth) dated 17 December 2004, 21 December 2005 and 19 December 2006; 2. 2003-2004 Annual Report, 2004-2005 Annual Report and 2005-2006 Annual Report of the Master Builders' Association of New South Wales, a federally registered organisation, containing, inter alia, audited accounts for the financial year, Committee of Management Statements and Operating Reports; 3. 'MBA Executive Newsbrief' Circulars to members dated October 2004, October/November 2005 and October/November 2006; 4. Certificates by Secretary of a State Organisation pursuant to s 518(1)(b) of the Industrial Relations Act 1991 ('the 1991 Act') and s 282(3) of the 1996 Act (relating to years 2004, 2005 and 2006); 5. Statements of Particulars of Loans, Grants and Donations by an Officer of an Organisation pursuant to s 280 of the 1996 Act (relating to years 2004, 2005 and 2006); 6. Certificates by Committee of Management of a State Organisation pursuant to s 510(2) of the 1991 Act and s 282(3) of the 1996 Act (relating to years 2004, 2005 and 2006); 7. Auditor's Reports pursuant to s 514 of the 1991 Act and s 282(3) of the 1996 Act (relating to years 2004, 2005 and 2006); and 8. Certificates by Accounting Officer pursuant to s 510(2) of the 1991 Act and 282(3) of the 1996 Act (relating to years 2004, 2005 and 2006). Relevant statutory provisions

[89]

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.

[114]

35 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 2004, 2005 and 2006 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 2004, 2005 and 2006 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 2004, 2005 and 2006 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 2004 to 12 December 2005 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;

At a glance

Court

Decision date

Before

Source

Judgment (117 paragraphs)

Legislation Cited (1)

Cases Cited (6)

Cited By (1)