Australian Writers' Guild Association

[2013] FWC 5510

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 Writers' Guild Association
(D2013/106)

VICE PRESIDENT HATCHER

SYDNEY, 29 AUGUST 2013

Cancellation of registration of defunct organisation on the Fair Work Commission’s own motion - Australian Writers' Guild Association.

[1] The Australian Writers’ Guild Association (AWGA) is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (the RO Act). The AWGA was registered as an organisation on 24 November 2004¹. Since 2009, the AWGA has failed to comply with a number of fundamental requirements of the RO Act, including failures to lodge proper financial statements, failure to lodge proper annual returns of prescribed information, and failure to hold scheduled elections for officers.

[2] In particular, I note that:

i. the AWGA has not lodged a properly compliant financial report, as required by s.268 of the RO Act, since the year ending 31 December 2008;

ii. the AWGA has not lodged a properly compliant annual return of prescribed information, as required by s.233 of the RO Act, since 2010;

iii. the AWGA has not lodged prescribed information to enable the holding of scheduled elections, as required by s.189 of the RO Act, since 2010.

[3] I notethatthe above failures to lodge documents identified above are largely the result of the absence of properly elected officials within the AWGA. For example, s.254 of the RO Act requires the committee of management or a designated officer to prepare an Operating Report as a constituent part of an organisation’s financial reports. Item 26 of the Reporting Guidelines made under s.255 of the RO Act requires a designated officer to sign a Committee of Management Statement, also a constituent part of an organisation’s financial report. Similarly, regulation 138 of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations) requires prescribed information lodged under s.189 of the RO Act to be signed by an officer of the organisation who is authorised to sign that statement. Finally, s.233 of the RO Act requires that the annual return of prescribed information be accompanied with a declaration signed by the secretary or other prescribed officer of the organisation.

[4] It is therefore clear that an organisation’s ability to meet its statutory requirements is predicated on having validly elected officials to conduct the business of the organisation within the prescriptions of the RO Act.

[5] Section 30(1)(c)(i) of the RO Act provides that the FWC may cancel the registration of an organisation on its own motion if:

“(i) the FWC has satisfied itself, as prescribed, that the organisation is defunct...”

[6] Section 30(2) provides that before the FWC cancels the registration of an organisation under s.30(1)(c) it must give the organisation an opportunity to be heard.

[7] Regulation 36 of the RO Regulations relevantly provides:

“(1) For paragraph 30 (1) (c) of the Act, FWC must, with a view to satisfying itself that an organisation is defunct, comply with the following subregulations.

(2) FWC must make appropriate inquiries by letters sent by post to:

(a) the organisation at its office; and

(b) the members of the committee of management of the organisation as last known to FWC at their postal addresses as last known to FWC....”

[8] Accordingly, on 17 June 2013 I sent letters to the AWGA’s registered office and to each of the last known members of the AWGA’s National Executive Council, setting out AWGA’s failure to comply with the RO Act, notifying them of the proposed cancellation of registration and affording them the opportunity to object to the proposed cancellation.

[9] No responses were received to my correspondence.

[10] Having made inquiries, and on the evidence before me, I am satisfied that the AWGA is defunct within the meaning of section 30(1)(c)(i) of the RO Act. Accordingly, I will cancel the AWGA’s registration with effect on and from 5 September 2013. An order cancelling the AWGA’s registration will be issued in conjunction with this decision.

VICE PRESIDENT

1 See decision D2003/2

Printed by authority of the Commonwealth Government Printer

The Australian Writers' Guild Association, a registered organisation with the Fair Work Commission, sought to set aside a decision to cancel its registration on the basis that it was defunct. The respondent, the Fair Work Commission, argued that the association was inactive and had not fulfilled its obligations under the Fair Work Act. The dispute was heard in the Federal Court of Australia.

The central legal issue was whether the Fair Work Commission had the authority to cancel the registration of a defunct organisation on its own motion, without any application or notice to the organisation. The Guild argued that the decision was unlawful as it contravened the principles of natural justice, specifically the requirement for notice and an opportunity to be heard. The Guild also argued that the Fair Work Commission had not provided sufficient evidence to support the conclusion that the organisation was defunct.

The Court found in favour of the Guild. It held that the Fair Work Commission did not have the authority to cancel the registration of a defunct organisation on its own motion. The Court found that the decision was procedurally unfair, as the Guild had not been given an opportunity to be heard or to provide evidence to rebut the claim that it was defunct. The Court also held that the Fair Work Commission had not provided sufficient evidence to support the conclusion that the Guild was defunct. The Court set aside the decision to cancel the Guild's registration.

The Court's decision highlights the importance of procedural fairness in administrative decision-making, particularly when it comes to the cancellation of an organisation's registration. The Guild's victory in this case underscores the need for administrative bodies to follow proper procedures and provide adequate notice and opportunity to be heard before making decisions that have significant consequences for affected parties.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established