The Police Association Salaried Officers' Union of New South Wales v Industrial Registrar

EX TEMPORE Judgment

1. By an amended application the Police Association Salaried Officers' Union makes an application pursuant to s 288 of the Industrial Relations Act 1996 (NSW) (hereinafter "the Act") with respect to invalidities in the management or administration of that organisation between January 2013 to date. The organisation also applied for its cancellation pursuant to s 225 of the Act in reliance upon grounds in s 226(g) and (f).
2. The plaintiff is an organisation of employees registered under Ch 5 of the Act. It is an enterprise union whose members are employed by the Police Association of New South Wales; itself a registered organisation that represents the interests of sworn police officers under the Act.
3. I am satisfied that requisite notice of these proceedings have been given to interested persons and I note that, notwithstanding, there is no contradictor in the proceedings today.
4. The matter goes forward upon the evidence of Gabriel Doyle by affidavit sworn on 12 May 2017.
5. In the amended form of the application the relief sought under s 288 of the Act is found within paras 1 and 2 of Schedule A to Exhibit B in the proceedings. I note for completeness that in his submissions today Mr A Howell, counsel for the plaintiff, accepted that para 1 of the proposed orders should operate in the form of a declaration so that the word "determines", which appears as the third word within the proposed order, should read "declares". I also note that no date is proposed for the cancellation of the organisation but it was accepted in submissions the date fixed for the same should be subsequent to any orders the Court may make under s 288 of the Act.
6. The background to the application is helpfully set out in the written submissions of the plaintiff. Those background facts, in summary, are as follows: 1. Upon the referral of powers by the New South Wales Parliament to the Commonwealth Parliament to make laws with respect to industrial organisations by the Industrial Relations (Commonwealth Powers) Act 2009 (NSW), State registered unions became national system employers within the meaning of s 30D of the Fair Work Act 2009 (Cth) and employees of those organisations became "national system employees" within the meaning of s 30N of that Act. 2. Upon becoming a national system employee and a national system employer, s 26 of the Fair Work Act excluded the operation of the Act, essentially making the Fair Work Act the legislation that regulated the employment relationship for those employees. 3. In order to ensure that the plaintiff's members could continue to be represented by an enterprise union in the Federal system, the then Committee of Management of the plaintiff made an application under the Fair Work (Registered Organisations) Act 2009 (Cth) ("the Registered Organisations Act") to register an organisation known as the Police Association Salaried Officers' Union of New South Wales ("the Federal Union"). 4. The Federal Union was itself registered under the Registered Organisations Act on 15 January 2013. 5. Upon registration under the Registered Organisations Act, an organisation becomes a body corporate with perpetual succession. 6. The rules of the plaintiff and the Federal Union are substantially identical, including the membership coverage under the respective rules. 7. As required by both the Act and the Registered Organisation Act, the rules of each of the plaintiff and the Federal Union provide for the officers that make up their Committee of Management to be periodically elected by their membership every two years. 8. For many years the Industrial Relations legislation has enabled organisations to have counterpart organisations registered under a State Industrial Relations system and a Federal Industrial Relations system to avoid the cost and inconvenience occasioned by multiple elections for what were, in substance, the same offices involving the same body of members of the respective organisations, by enabling the election of officers of an organisation in one system to be recognised as a valid election to officers of the counterpart organisation in the other system. 9. It was contended that, by oversight, the registered rules of the plaintiff drafted long before the plaintiff ever had a Federal counterpart were not amended following the creation of the Federal Union so as to enable an election of the officers of President, Vice-President, Secretary and Treasurer of the Federal Union to be taken to be an election of the corresponding office in the plaintiff. I accept that submission on the evidence before the Court. 10. Upon the evidence before the Court the officers elected to the Committee of Management of the Federal Union had mistakenly thought that they had been validly elected to the corresponding office in the plaintiff as a result of the elections of the Federal Union. It was submitted that the officers simply had not appreciated that it was only in limited circumstances that the election of officers of a State branch of a federally registered organisation are taken to be validly elected to the corresponding office of a State organisation under the Act. I also accept that submission.