Baking Manufacturers' Industry Association of Australia

[2013] FWC 6834

[2013] FWC 6834

FAIR WORK COMMISSION

DECISION

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

Baking Manufacturers' Industry Association of Australia
(D2013/122)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 11 SEPTEMBER 2013

Application to cancel registration on Fair Work Commission's own motion - Subsection 30(1)(c) of the Fair Work (Registered Organisations) Act 2009.

Introduction

[1] This is an application on the Fair Work Commission’s own motion to cancel the registration of the Baking Manufacturers’ Industry Association of Australia (the Association) pursuant to subsection 30(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

[2] The matter was heard on Wednesday, 4 September 2013.

[3] The Association was represented by Mr A. Duc and its President, Mr S. Latter.

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

(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] 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 33 deals with cancellation of registration where the organisation applies 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.”

[8] 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 Gazette.

[9] The Association had lodged an application under subsection 30(1)(a) for the cancellation of its registration on 24 June 2013. The grounds were that the Association no longer has any members and has been inactive for some years.

[10] That application could not be advanced because Regulation 33 (set out above) requires a majority of members voting in a ballot to approve it. The Association no longer has any members.

[11] I therefore have decided to proceed on the Commission’s own motion under subsection 30(1)(c)(i) because the report of the Regulatory Compliance Branch (RCB) indicated that the Association is defunct.

[12] The Commission is required to give the organisation an opportunity to be heard, pursuant to subsection 30(2), hence the hearing was organised following extensive discussions between the RCB and the organisation.

Background

[13] Mr Duc and Mr Latter outlined, at the hearing, some of the changes on the employer side of the industry that meant the Association was defunct.

[14] Other relevant matters were:

● Nominations called by the AEC for the Association in April 2012 led to no nominations being received.

● The 2013 accounts showed the Association had no income and some $14,000 in assets. Those assets are to be distributed in accordance with the Association’s rules.

Decision

[15] I am satisfied that the Baking Manufacturers’ Industry Association of Australia is defunct.

[16] Pursuant to subsection 30(1)(c) of the RO Act, the registration of the Baking Manufacturers’ Industry Association of Australia will be cancelled on the Commission’s own motion.

[17] The cancellation will take effect seven (7) days after this decision so that the Regulatory Compliance Branch can attend to all the administrative aspects that flow from the cancellation.

DEPUTY PRESIDENT

Appearances:

A. Duc with S. Latter for the Baking Manufacturers’ Industry Association of Australia.

Hearing details:

2013

Sydney:

September 4.

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