Australian Childcare Centres Association

[2015] FWC 4988

[2015] FWC 4988

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.30(1)(a) RO Act - Application by organisation for cancellation of registration

Australian Childcare Centres Association
(D2015/56)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 22 JULY 2015

Cancellation of registration.

[1] This is an application by the Australian Childcare Centres Association (“the ACCA”) under s.30(1)(a) of the Fair Work (Registered Organisations) Act 2009 (“the RO Act”) to cancel its own registration.

[2] The application was lodged on 14 May 2015, and allocated to me on 20 July 2015.

[3] Section 30(1)(a) of the RO Act provides that the Fair Work Commission may cancel the registration of an organisation on application by the organisation made in accordance with the Fair Work (Registered Organisation) Regulations 2009 (“the RO Regulations”).

[4] Section 30(1)(a) of the RO Act provides as follows:

30 Cancellation of registration on technical grounds etc.

(1) The FWC may cancel the registration of an organisation:

(a) on application by the organisation made under the regulations; or

(b) on application by an organisation or person interested or by the Minister, if the FWC has satisfied itself, as prescribed, that the organisation:

(i) was registered by mistake; or

(ii) is no longer effectively representative of the members who are employers or employees, as the case requires; or

(iii) is not free from control by, or improper influence from, a person or body referred to in paragraph 19(1)(b) or 20(1)(b), as the case requires; or

(iv) subject to subsection (6), if the organisation is an enterprise association—the enterprise to which it relates has ceased to exist; or

(c) on the FWC’s own motion, if:

(i) the FWC has satisfied itself, as prescribed, that the organisation is defunct; or

(ii) the organisation is an organisation of employees, other than an enterprise association, and has fewer than 50 members who are employees; or

(iii) the organisation is an enterprise association and has fewer than 20 members who are employees; or

(iv) the organisation is an organisation of employers and the members who are employers have, in the aggregate, throughout the 6 months before the application, not employed on an average taken per month at least 50 employees; or

(v) the organisation is not, or is no longer, a federally registrable association.
[…]

[5] Regulation 33 of the RO Regulations provides as follows:

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.

[6] Regulation 34 of the RO Regulation provides as follows:

34 Application for cancellation of registration (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.

(5) A notice of objection must:

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

(b) be lodged with the FWC; and

(c) comply with the requirements of regulation 14.

(6) An objector must, within 7 days after lodging a notice of objection under sub regulation (4), serve copies of the notice of objection on the organisation applying to cancel its registration.

(7) The FWC must:

(a) fix a time and place for hearing the application and any objection to the application; and

(b) notify the organisation and any objector of the time and place fixed for the hearing.

(8) The FWC must not:

(a) refuse to grant an application for cancellation of registration without giving the applicant an opportunity to be heard; or

(b) grant the application without giving any objector an opportunity to be heard.

[7] I note from the decision of Vice President Watson in [2014] FWC 5498 (see paragraph 9) that the ACCA had taken steps to elect officials after a lengthy period in which no elected “officials” conducted the affairs of the organisation. An election, it appears, was conducted by the Australian Electoral Commission in February 2014, with the results of that election having been declared on 14 February 2014.

[8] In the circumstances of this application, however, the ACCA has indicated that as matters have developed since it has no available financial resources (including any realisable assets) to conduct a ballot utilising external resources and no paid person who may assist in meeting the process requirements of a postal ballot or otherwise as may be required by the Rules. Further, the ACCA, as at 1 July 2015, has no financial members on its books and no person is entitled to vote in any ballot for any purpose under the Rules.

[9] I note the application was gazetted and no notice of objection was lodged. Further, correspondence on 21 July 2015 from the President of ACCA to the Commission was to the effect that he sought the determination of the application without recourse to a hearing.

[10] Demonstrably, in my view, the ACCA cannot any longer fulfil its representative and accountability functions under the RO Act, nor any longer operate in accordance with its own Rules.

[11] Accordingly, under s.30(1)(c)(i) of the RO Act I am satisfied that the developing circumstances since 2014 indicate that ACCA is now defunct. I have corresponded with the President of ACCA for the purposes of regulation 36 of the RO Regulations.

[12] Further, and in the alternative, in respect of the application by ACCA under s.30(1)(a) of the RO Act, I note that the ACCA’s Rules do not make provision for cancellation of its own registration or for the election of “officers”.

[13] In such circumstances, sub regulation 33(b)(ii)of the RO Regulations applies.  

[14] The voting method applied by the ACCA was to the following effect:

• Notice being given to all Members (as they were prior to 1 July 2015) on 21 April 2015 of a Special General Meeting to be held on 13 May 2015;



• Specification by the Notice of the business of the Meeting, being:

“To vote on a resolution to seek the cancellation of the registration of the Association under the Fair Work (Registered Organisations) Act 2009 and the authorisation of the Secretary to make such an application.”

• The Special General Meeting on 13 May 2015 was convened in accordance with the Rules and the resolution passed unanimously.



• The application was lodged in the Commission the following day.

[15] Given the context, I consider the voting method set out above to be capable of approval by the Commission, and - in addition - apply sub regulation 179(1) of the RO Regulations to exempt ACCA from further residual procedural requirements under the Regulations.

Conclusion

[16] Pursuant to the RO Act provisions relied on above, the registration of the ACCA will be cancelled.

[17] The cancellation will take effect from Wednesday 29 July 2015.

SENIOR DEPUTY PRESIDENT

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