Practice Note No.27


Issue Date:
14 May 2012


INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
 
PRACTICE NOTE No. 27
Issued pursuant to Section 185A of the Industrial Relations Act 1996 and Section 15 of the Civil Procedure Act 2005
 

Applications for declaration under section 290B of the
Industrial Relations Act 1996

1. The purpose of this Practice Note is to provide an appropriate procedure for applications for a declaration under section 290B of the Industrial Relations Act 1996 to be made to the Industrial Relations Commission of New South Wales.

2. This Practice Note has effect from the date of issue.

3. Applications for a declaration under section 290B of the Industrial Relations Act 1996 made to the Industrial Relations Commission of New South Wales shall be made by way of application, in terms of Form 1 of the Industrial Relations Commission Prescribed Forms (Rule 3.1 Industrial Relations Commission Rules 2009).


4. MAKING APPLICATION
The following is applicable to any such application:
    4.1 That application shall include a statement as to the capacity of the applicant to bring the application.
      4.2 The application shall set out the relief sought and shall state briefly but specifically the grounds on which that relief is sought.
        4.3 The primary relief available under section 290B of the Industrial Relations Act 1996 is an order declaring one of the following:

            (a) a declaration that the organisation or a part of the organisation, including:

            (i) a branch or part of a branch of the organisation, or

            (ii) a collective body of the organisation or a branch of the organisation,

            has ceased to exist or function effectively and there are no effective means under the rules of the organisation or branch by which it can be reconstituted or enabled to function effectively,

            (b) a declaration that a collective body of the organisation or one or more officers of the organisation are alleged to have engaged, or have engaged, in gross misconduct in relation to the carrying out of their functions or in relation to the organisation,

            (c) a declaration that an office or position in the organisation or a branch of the organisation is vacant and there is no effective means under the rules of the organisation or branch to fill the office or position.

        4.4 In specifying the grounds upon which an order is sought, the applicant should note section 290B(8) of the Industrial Relations Act 1996, which provides:
                If the Commission makes a declaration under this section, the Commission may, by order, approve a scheme for the taking of action by the organisation, a collective body of the organisation or a branch of the organisation, or by an officer or officers of the organisation or a branch of the organisation:

                (a) for the reconstitution of the branch, the part of the branch or the collective body, or

                (b) to enable the organisation, branch, the part of the branch or the collective body to function effectively, or

                (c) for the filling of the office or position.

                A scheme may include the appointment of an administrator for the organisation.

        4.5In making such an Order the Commission may give any ancillary or consequential direction it considers appropriate.

        5. Unless otherwise approved by the Registrar, the application shall be accompanied by an affidavit, which shall set out briefly but specifically:
          (a) the circumstances which have led to the application being made;

          (b) those matters on which the applicant relies for the relief sought in the application [see paragraphs 4.2(a),(b)and (c) above]; and

          (c) any material relevant to the Commission�s exercise of discretion under section 290B of the Industrial Relations Act 1996upon which the applicant intends to rely and, to the extent that the application refers to or contains matters of fact, shall verify those facts.

          6. The Application and supporting affidavit, together with any additional material being filed by the applicant, shall:

                (a) be accompanied by sufficient copies to allow for service on other parties having regard to Rule 6.2(3A) of the Uniform Civil Procedure Rules 2005

                (b) be served by the applicant on
                      (i) where the Minister is not the applicant, the Minister,
                        (ii) such other person that the applicant is directed to serve by the Industrial Registrar, which may include any party that the Industrial Registrar believes has a sufficient interest in the application.



                Boland JPresident
                14 May 2012