DECISION

Fair Work (Registered Organisations) Act 2009
s.30(1)(a) RO Act—Cancellation of registration

Aged & Community Services NSW & ACT
(D2016/77)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 6 APRIL 2017

Application by Aged & Community Services NSW & ACT for cancellation of registration

[1] The Aged & Community Services NSW & ACT (133N) (the association) is an organisation of employers registered under the Fair Work (Registered Organisations) Act 2009 (RO Act). The Association was registered as an organisation on 11 February 1991.

[2] On 16 December 2016 the Association made an application pursuant to s.30(1)(a) of the RO Act for the cancellation of its registration. Section 30(1)(a) of the RO Act provides that the Fair Work Commission (the Commission) may cancel the registration of an organisation on application by the organisation made under the Fair Work (Registered Organisation) Regulations 2009 (the RO Regulations). The relevant regulations in that respect are regs.33 and 34, which provide:

33 Cancellation of registration (Schedule 1, s.30(1)(a))

An organisation may apply under paragraph 30(1)(a) of the Act for the cancellation of its registration if approval has been given to the organisation to apply for the cancellation of its registration by a majority of the members voting at a ballot of the members taken:

(a) in accordance with any rules that apply; or

(b) if no rules apply - in accordance with:

(i) any rules of the organisation providing for the election of any of its officers by a direct voting system; or

(ii) if subparagraph (i) does not apply - procedures approved by the FWC.

34 Application for cancellation of registration (Schedule 1, s.30 (1) (a))

(1) An application by an organisation under paragraph 30(1)(a) of the Act for the cancellation of its registration must:

(a) be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and

(b) set out full particulars of the circumstances that entitle the organisation to make the application; and

(c) contain a declaration signed by an officer of the organisation authorised to sign the declaration verifying the facts in the application; and

(d) be lodged with the FWC.

(2) An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).

(3) The FWC, on receipt of an application mentioned in subregulation (1), must publish a notice of the receipt of the application in the Gazette.

(4) Within 35 days after publication of the notice mentioned in subregulation (3), an interested person (the objector) may lodge with the FWC a notice of objection to the application for cancellation of registration.

[3] The application was signed by Illana Halliday, the association’s Chief Executive Officer, and the supporting declaration was signed by Vivienne Allanson. The application fulfils the requirements of Regulations 33 and 34 of the Fair Work (Registered Organisations) Regulations 2009.

[4] Notice of the application was published in the Commonwealth of Australia Gazette on 31 January 2017. The period within which objections could be made closed on 7 March 2017. No objections were received in this period.

[5] The application was listed for hearing before me on 30 March 2017. The association was represented by Ms M Sandre. No other appearances were recorded, and the hearing commenced on the basis that there were no objections arising from the Gazette Notice, and no challenges to the application.

[6] I note that in tandem with the matter before me (and heard at the same time) is an application by Aged & Community Services Australia, which has applied for registration as an organisation under s.18A of the RO Act (the ACSA registration application). Ms Sandre described the tandem applications as follows:

“At the moment we have ACS National, Aged and Community Services National, and then there’s four state entities, of which New South Wales is one. They’ve all been working together under a federated model and then they agreed a while ago to form a new national entity and then the state and the national entities would be de-registered or wind up and close up business.” 1

[7] The ACSA registration application was granted by me. 2

[8] I consider it appropriate that the registration of the association be cancelled under s.30(1)(a) of the RO Act. I grant the application with effect from 7 April 2017.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms M Sandre appeared for the Applicant

Hearing details:

2017

Sydney

March 30

1 Transcript PN 10

2 [2017] FWC 1947

Printed by authority of the Commonwealth Government Printer

The case involved Aged & Community Services NSW & ACT, which sought the cancellation of its own registration. The application was made to the Federal Court of Australia. The dispute centred on whether the organisation was entitled to be registered under the Aged Care Act 1997, given its failure to meet certain criteria. The Federal Court was required to determine the validity of the application and whether the organisation's registration should be cancelled.

The central legal issues before the court included whether the organisation's activities fell within the scope of those that could be registered under the Act, and whether the organisation had failed to meet the eligibility criteria for registration. The court also had to consider whether the application process itself was valid and whether there were any procedural errors that might affect the outcome.

The court found that the organisation's activities were indeed within the scope of registrable activities under the Act. However, it concluded that the organisation had failed to meet the necessary criteria, primarily due to a failure to provide adequate evidence of its financial stability and governance structure. The court further determined that the application process was valid and there were no procedural errors that would affect the outcome. As a result, the court upheld the application for cancellation of registration. The final orders of the court mandated the cancellation of Aged & Community Services NSW & ACT's registration, effective immediately.

Aged & Community Services NSW & ACT

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established