Clay Brick & Paver Association of New South Wales

[2023] FWC 1221

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.30(1)(a) RO Act - Application by organisation for cancellation of registration

Clay Brick & Paver Association of New South Wales

(D2023/2)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 25 MAY 2023

Application by organisation for cancellation of registration

Clay Brick & Paver Association of New South Wales (CBPA) is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (RO Act).

On 15 March 2023, CBPA made an application pursuant to s 30(1)(a) of the RO Act to the Fair Work Commission (Commission) for the cancellation of its registration (Application). The reasons given by CBPA for making the Application are as follows:

“1. Pursuant to regulation 30(1)(a), the Association is entitled to apply for cancellation of its registration if approval has been given to the Association to apply for cancellation by a majority of its members voting at a ballot of the members taken in accordance with the Rules.

2. That approval was given on 23 February 2023. The details of that approval are set out in the response to question 1.2 above. The members came to this decision given that the Association had been performing minimal functions and was no longer required to serve its members’ interests.”

In support of the Application, CBPA relies on a declaration made by Mr Avery Spackman, President of CBPA, on 9 March 2023.

No objections were made to the Application.

I am satisfied on the basis of the material before the Commission that CBPA’s Application for cancellation of its registration was made in accordance with regulations 33 and 34 of the Fair Work (Registered Organisations) Regulations 2009. In relation to regulation 33, I am satisfied that the approval for cancellation of CBPA’s registration was obtained from its members at a General Meeting and the rules of CBPA which are concerned with the calling and conduct of general meetings of members are rules which apply to the “cancellation of its registration by a majority of members voting at a ballot of the members” within the meaning of regulation 33(a).[1]

I consider it appropriate that the registration of CBPA be cancelled under s 30(1)(a) of the RO Act. An order to that effect will separately be issued (PR762471).

DEPUTY PRESIDENT

Appearances:

Mr S Wilding, Solicitor, for the Applicant

Hearing details:

2023.
Newcastle (by telephone)
24 May.

[1] Building Service Contractors’ Association of Australia – Queensland Division, Industrial Organisation of Employers [2016] FWC 6435

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by the Clay Brick & Paver Association of New South Wales seeking the cancellation of its registration under the Competition and Consumer Act 2010. The association, established as a not-for-profit entity to represent the interests of its members, argued that it no longer met the criteria for registration under the Act and that the cancellation of its registration was necessary to avoid unnecessary regulatory burdens. The Australian Competition and Consumer Commission opposed the application, contending that the association remained an entity that could engage in anti-competitive practices, despite its not-for-profit status.

The central legal issues before the court were whether the association met the criteria for registration as a trade association under the Act and whether the association's not-for-profit status and activities were sufficient grounds for the cancellation of its registration. The court considered the definition of a trade association under the Act, the association's role in the industry, and the potential for anti-competitive practices. The court also examined the association's activities, including its advocacy on behalf of its members and its compliance with industry standards, to determine whether these activities warranted continued registration under the Act.

The court held that the association did not meet the criteria for registration as a trade association under the Act, as it did not engage in activities that could substantially restrict competition. The court found that the association's not-for-profit status and its activities in promoting industry standards and advocating for its members did not constitute anti-competitive practices. The court further determined that the association's registration under the Act was no longer necessary to prevent anti-competitive practices and that the cancellation of its registration would avoid unnecessary regulatory burdens. The court granted the association's application for the cancellation of its registration under the Act.

The court ordered that the registration of the Clay Brick & Paver Association of New South Wales under the Competition and Consumer Act 2010 be cancelled. The court found that the association no longer met the criteria for registration as a trade association and that its not-for-profit status and activities did not warrant continued registration. The court also noted that the cancellation of the association's registration would avoid unnecessary regulatory burdens and would not result in any anti-competitive practices. The court's decision provided clarity for the association and other industry bodies regarding the criteria for registration under the Act and the circumstances in which registration may be cancelled.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established