ACM, New South Wales Branch

Industrial Relations Commission of New South Wales in Court Session CITATION : ACM, New South Wales Branch [2000] NSWIRComm 147 PARTIES : APPLICANT ACM, New South Wales Branch FILE NUMBER: IRC 3107 of 2000 CORAM: Wright J President; Walton J Vice-President; Hungerford J CATCHWORDS : Registered Organisations - Application by registered organisation for cancellation of its registration - Changed circumstances as to organisation's involvement in industrial relations and representation - Amalgamations in federal and State juridisdictions rendered applicant organisationally defunct - Application granted. LEGISLATION CITED : Industrial Relations Act 1996 s 225 s 226 s 227 s 228 HEARING DATES: 08/09/2000 EXTEMPORE JUDGMENT DATE : 08/09/2000 LEGAL REPRESENTATIVES: APPLICANT Mr M Moir, Industrial Advocate JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Wednesday, 9 August 2000 Matter No IRC 3107 of 2000 ACM, NEW SOUTH WALES BRANCH. Application to cancel registration as an Industrial Organisation under s 225(3) of the Industrial Relations Act 1996. JUDGMENT OF THE COURT (Extempore) 1 These proceedings relate to an application by the ACM, New South Wales Branch (the applicant) for an order cancelling its registration as an industrial organisation pursuant to s 225(3) of the Industrial Relations Act 1996 (the Act). 2 The grounds and reasons in support of the application are in the following terms: 1. On 1 July 1998, the ACM and MTIA merged to form the Australian Industry Group. 2. The amalgamation was approved by the Australian Industrial Relations Commission in May 1998. 3. By resolution of the Council of the ACM, NSW Branch it was decided to seek cancellation of the registration of the State organisation. 4. As a result of the merger, the ACM, NSW Branch is now defunct. 3 The provision under which the application is brought is in the following terms: 225 Institution of proceedings for cancellation of registration (1) An industrial organisation or, with the leave of the Commission, a person who has a sufficient interest in the matter may apply to the Commission for the cancellation of the registration of an industrial organisation. (2) The Commission may institute proceedings under this Division on its own initiative. (3) An industrial organisation may apply for the cancellation of its own registration. (4) An industrial organisation must be given an opportunity to be heard by the Commission in any proceedings against the organisation under this Division. 4 That provision must, however, be read in the light of ss 226 and 227 of the Act which respectively provide the grounds upon which registration may be cancelled and limitations as to the exercise of the power to cancel the registration of an industrial organisation. These sections provide: 226 Grounds on which registration may be cancelled The registration of an industrial organisation may be cancelled on any one or more of the following grounds: (a) that the organisation, or a substantial number of its members, has or have contravened the industrial relations legislation, any industrial instrument, or any order of the Commission, (b) that the industrial organisation, or a substantial number of its members, has or have engaged in any industrial action that has had, is having or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or a part of the community, (c) that the organisation or a substantial number of its members, has or have engaged in any industrial action that has had or is having a major and substantial adverse effect on the provision of any public service by the State or an authority of the State contrary to the public interest and without reasonable excuse, (d) that the industrial organisation was registered by mistake, (e) that the industrial organisation is no longer effectively representative of the members who are employees or employers, as the case requires, (f) that the organisation has applied for the cancellation of its own registration, (g) that the organisation is defunct, (h) in the case of a federal organisation—that the rules of the organisation (and any parent body) no longer confer on the organisation a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales. 227 Cancellation of registration of industrial organisation (1) The Commission may cancel the registration of an industrial organisation if the Commission considers that a ground for cancellation has been established. (2) However, the Commission is not to cancel the registration of an industrial organisation on a ground referred to in section 226 (a)–(c) unless the Commission considers that it is appropriate to cancel the registration in the circumstances because of the gravity of the case. 5 The particular parts of s 226 relevant to this application are paragraphs (e) and (f) and the requirement and limitation in s 227(2) does not therefore need to be satisfied. This conclusion also serves to illustrate that the application being one brought on the organisation’s own motion is not one where the Commission is required to consider any adverse circumstances involving the organisation. 6 The consequences of cancellation of registration are also dealt with in the Act. For example, s 228(3) provides that the organisation ceases to be a body corporate under the Act, although it does not thereby cease to be an unincorporated organisation; and that the Commission is empowered, on application by a person interested, to make such orders as it considers appropriate as to the satisfaction of the debts and obligations of the organisation out of its property. 7 It is therefore appropriate to consider, at least in a preliminary way, the consequences of the application presently made upon the financial affairs of the organisation. It is to be observed that the applicant seeks the application be granted from 30 June 2000, the date upon which the application was filed. 8 In support of its application the applicant has filed two affidavits by Mr David Hargraves sworn on 6 July 2000 and 7 August 2000. Mr Hargraves is the Executive Officer, NSW, of the Australian Industry Group. Prior to his appointment to that position he was employed by the Australian Chamber of Manufactures in various capacities in the human resources and industrial relations field and deposes that when the applicant became a registered industrial organisation under the Act he became responsible in his capacity as Manager, Human Resources for all of the industrial activities of the organisation. In that role he also attended meetings of the elected governing body of the applicant (the NSW Council) to report on major matters including industrial relations issues pertaining to New South Wales. 9 In the first affidavit, Mr Hargraves sets out in some detail certain events relating to registrations under both the federal legislation and the Industrial Relations Act which are relevant to the present application. The relevant part of that affidavit is in the following terms: 7. On 26 February 1998, an application was made under s.242 of the Workplace Relations Act 1996 (Cth) for approval by the Australian Industrial Relations Commission of the amalgamation of the Australian Chamber of Manufactures (“ACM”) and the Metal Trades Industry Association of Australia (“MTIA”). The scheme of amalgamation filed with the application proposed upon the amalgamation taking effect that the ACM would be de-registered and the MTIA would remain registered but with its name changed to the Australian Industry Group. 8. On 1 April 1998, the amalgamation was approved for submission to a ballot of members of the MTIA and the ACM. 9. The members of each organisation approved the amalgamation and in accordance with Regulation 98E of the Workplace Relations Regulations . Notice was given on 29 June 1998 in newspapers nationally that 1 July 1998 had been fixed as the day on which the amalgamation was to take effect. 10. On 1 July 1998, the ACM was de-registered by his Honour Vice President McIntyre of the Australian Industrial Relations Commission pursuant to s.253(Q)(3)(c) of the Workplace Relations Act 1996 (Cth) … 11. On 15 July 1998, an application was lodged to register a branch of the new federal organisation known as the Australian Industry Group, New South Wales Branch under s.219 of the Industrial Relations Act 1996 (NSW) . The application was subsequently approved by the NSW Industrial Registrar. 12. On 28 June 1999, a meeting of the Council of the ACM, NSW Branch made the following unanimous resolution: (i) For the ACM, NSW Branch to cease business other than to take action to de-register the Branch pursuant to the Industrial Relations Act 1996 (NSW); (ii) For the ACM, NSW Branch to apply to the Industrial Relations Commission of NSW to seek de-registration in accordance with s.226 of the Industrial Relations Act 1996. (iii) In accordance with the notice of meeting dated 21 June 1999 and the amended Rule 43 of the Branch Rules, to dissolve the ACM, NSW Branch with effect from 30 June 1999. … 13. As a result of the merger between ACM and MTIA, the ACM, NSW Branch became defunct. The organisation appears within the State jurisdiction as the Australian Industry Group, NSW Branch on behalf of members. 14. In the event that an order cancelling the registration of the ACM, NSW Branch was not made retrospective to take effect from 30 June 2000, this would incur considerable and unnecessary expense through the payment of audit fees and other accounting costs by the Branch over an additional financial year. 15. Given that the ACM, Branch is now organisationally defunct and has been so for at least the past twelve months, we respectfully request this Honourable Commission to make the order for de-registration retrospective, thereby operating from 30 June 2000. 11 In the affidavit of 7 August 2000, Mr Hargraves deals with the situation of possible creditors of the applicant and the situation of other parties who might be interested in the application. As to the first of those issues, he deposes that from 1 July 1998 all assets of the applicant were transferred to the Australian Industry Group and that from 30 June 2000 and subject to its remaining bank balance no liabilities are owed to the Australian Industry Group by the applicant and all amounts outstanding as at 30 June 1998 have been settled. Also, that all costs incurred by the applicant from 1 July 1998 and up to the date of the cancellation of the applicant’s registration will be borne by the Australian Industry Group. Finally, that as at 30 June 2000 there were no claims or legal actions pending or in progress in relation to the applicant, nor have any claims or legal actions arisen since that date and that no events have occurred since the date of filing of the present application which could lead to litigation against the applicant. Mr Hargraves has also annexed to his affidavit a Financial Report for the applicant for the last financial year. This report confirms the matters otherwise deposed to by Mr Hargraves. 12 As to the membership of the organisation, he indicates that because of the steps otherwise referred to in his affidavit and the non-receipt of membership fees by the applicant during the years ended 30 June 1999 and 30 June 2000 there are no longer any members of the applicant. 13 He also provides evidence as to certain steps taken by the applicant to provide notice of the present application to all relevant industrial organisations and has indicated that no response has been received to the invitation made on behalf of the applicant for any of those organisations to express any interest in the proceedings or the application for cancellation of the applicant’s registration. 14 We are satisfied that the evidence provided by the applicant in terms of the affidavits of Mr Hargraves is such that we should grant the application. We make it clear that we do so in terms of the ground specified in s 226(f) of the Act although we also note that it would have been open to us to cancel the registration on the ground set out in s 226(e). 15 The application seeks an order cancelling its registration with effect from 30 June 2000. That is, it seeks that the Commission make an order operating retrospectively prior to the date of the order. We have some doubt whether we have power to do so notwithstanding the compelling reasons, with which we have some sympathy, set out in the affidavit of Mr Hargraves of 6 July 2000 and to which we have earlier referred. In the circumstances, we do not consider that it is appropriate to make an order cancelling the registration effective from a date other than today’s date. However, it is open to the applicant to approach the Industrial Registrar to consider the requirements of the Act in relation to the short period during which the applicant was registered in the current financial year, and as to what steps he requires to be taken in relation to that period. It may also be open to the applicant to make an application to the Commission pursuant to s 228(3)(b), although we have considerable doubt whether such a step would be necessary or appropriate. 16 We accordingly make the following orders: 1. The registration under the Industrial Relations Act 1996 of the ACM, New South Wales Branch is hereby cancelled. 2. The order cancelling the registration of the ACM, New South Wales Branch shall take effect on 9 August 2000. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.