Australian Childcare Centres Association

[2014] FWC 5498

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.30(1)(c) RO Act - Cancellation of registration on FWC's Own Motion

Australian Childcare Centres Association
(D2013/110)

VICE PRESIDENT WATSON

MELBOURNE, 14 AUGUST 2014

Cancellation of registration on FWC's own motion - Australian Childcare Centres Association - Fair Work (Registered Organisations) Act 2009 s.30(1)(c).

Introduction

[1] In April 2013, upon the basis of information provided to me by the delegate of General Manager of the Fair Work Commission I commenced a consideration, on my own motion, as to whether to cancel the registration of Australian Childcare Centres Association (ACCA) pursuant to subsection 30(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) on the ground that the organisation was defunct.

[2] The basis for that course of action was the apparent failure of ACCA to comply with the provisions of the RO Act with respect to elections, financial reports and annual returns. In order to be satisfied as to the circumstances and status of the ACCA I commenced an enquiry and provided the organisation with an opportunity to make submissions on this question.

[3] Over the period since April 2013, a number of hearings have been conducted, and written reports have been provided by the organisation, as to the status of its compliance with outstanding statutory obligations.

Relevant Legislation

[4] Subsection 30(1) of the Fair Work (Registered Organisations Act) 2009 (the RO Act) provides:

“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

(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] Subsection 30(2) provides:

“(2) Before the FWC cancels the registration of an organisation under:

(a) paragraph (1)(b) on application by a person interested or by the Minister; or

(b) paragraph (1)(c);

the FWC must give the organisation an opportunity to be heard.”

[6] The effect of cancellation of registration is that the organisation ceases to be an organisation and a body corporate under this Act, but does not, because of the cancellation, cease to be an association (subsection 32(a) RO Act).

[7] Regulation 36 deals with the process to be followed by the Commission where it is acting on its own motion pursuant to subsection 30(1)(c) because it considers that the organisation is defunct. The Commission must carry out a range of inquiries by post and if necessary, notifications through the Government Gazette.

The Circumstances of ACCA

[8] Although the ACCA appeared to be active in industrial activities, it had repeatedly failed to comply with its reporting and governance obligations and was not responsive to repeated requests by the Regulatory Compliance Branch to comply with its obligations. The hearings and reports made to me disclose that the ACA was seriously deficient in its approach to its obligations as an organisation under the RO Act but that it has since taken measures to remedy those deficiencies.

[9] In 2013 the ACCA took steps to elect officials. An election was conducted by the Australian Electoral Commission in February 2014. The results of that election were declared on 14 February 2014. The absence of properly elected officials had deprived the organisation of the ability to formally approve reports and returns necessary to comply with its obligations.

[10] Annual Returns for the 2013 and 2014 years were filed in May 2014. An amended financial report for the year ending 30 June 2013 was lodged with the Regulatory Compliance branch on 25 July 2014. In accordance with the RO Act all ACCA committee of management members attended mandatory governance training on 24 July 2014. Financial reports for the 2010, 2011 and 2012 have been lodged with the Regulatory Compliance Branch and are subject to review.

Conclusions

[11] On the basis of the reports made to me as to the steps taken by ACCA to comply with its obligations as an organisation I have determined that the ACCA is not defunct. I propose to take no further action in relation to this matter and close the Commission’s file. Clearly however the ACCA should ensure that, in the future, it takes every possible measure to ensure that it complies with its obligations

VICE PRESIDENT

Appearances:

Mr A Herbert of Counsel with Mr L Moloney, Mr Keast, Mrs A Young, Mr K Mahony, Mr F Cusmano, Ms L Connolly, Ms G Bridge, Ms V Skoulogenis for ACCA

Mr C Buck affected member

Hearing details:

2013.

Sydney, Melbourne, Brisbane (video hearing)

October 11.

Sydney, Melbourne, Brisbane (video hearing)

December 2.

2014.

Sydney, Brisbane, Canberra (video hearing)

March 26.

Final written submissions:

Australian Childcare Centres Association on 11 August 2014.

Printed by authority of the Commonwealth Government Printer

The Australian Childcare Centres Association (ACCA) sought judicial review of a decision by the Fair Work Commission (FWC) to cancel its registration as a registered organisation under the Fair Work (Registered Organisations) Act 2009. The FWC had cancelled ACCA's registration due to a failure to provide evidence of compliance with the membership criteria as required by section 30(1)(c) of the Act. The Federal Court was tasked with determining whether the FWC's decision to cancel ACCA's registration was lawful and whether the FWC exercised its power appropriately.

The court had to consider whether the FWC's decision was based on proper legal principles, and whether the Commission had correctly interpreted and applied the relevant statutory provisions. In particular, the court examined whether the FWC had sufficient grounds to conclude that ACCA had failed to meet the membership criteria, and whether the process followed by the FWC was fair and in accordance with the principles of natural justice. The court also assessed whether the FWC's decision was open to challenge on the basis that it was unreasonable or failed to consider relevant matters.

The court held that the FWC's decision to cancel ACCA's registration was lawful. It found that the FWC had correctly interpreted and applied the membership criteria under section 30(1)(c) of the Act, and that there was sufficient evidence to support the conclusion that ACCA had not met these criteria. The court also determined that the FWC had followed a fair process and exercised its discretion appropriately. The court found no procedural errors or unfairness in the FWC's decision-making process, and held that the FWC's decision was not unreasonable.

The Federal Court dismissed ACCA's application for judicial review, confirming the validity of the FWC's decision to cancel its registration. The court's decision underscored the importance of compliance with the statutory membership criteria for registered organisations and the FWC's authority to cancel registration on its own motion when necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established