Mechanical Harvesters’ Association of Australia
[2014] FWC 287
•10 JANUARY 2014
[2014] FWC 287 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
s.30(1)(c) RO Act - Cancellation of registration on FWC’s Own Motion
Mechanical Harvesters’ Association of Australia
(D2013/102)
VICE PRESIDENT WATSON | SYDNEY, 10 JANUARY 2014 |
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 Mechanical Harvesters’ Association of Australia (MHAA) pursuant to subsection 30(1)(c) of the Fair Work (Registered Organisations) Act 2009 (the RO Act).
Legislation
[2] 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.”
[3] 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.”
[4] 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).
[5] 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.”
[6] 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.
Relevant Circumstances
[7] The MHAA was registered on 7 November 1973. Its eligibility rule covers employers in the industry of mechanical harvesting of agricultural and horticultural crops.
[8] As at 31 December 2003, the last known number of members was 185 and the last known annual income was $506.53.
[9] The MHAA has failed to comply with its statutory obligations under the RO Actand related predecessor legislationwith respect to the lodgement of financial reports, annual returns and elections since 2007.
[10] In particular the MHAA has failed to lodge:
● An annual return (as required by per s.233 of the RO Act) since 2003;
● A financial report (as required by s.268 of the RO Act) since 2003;
● The prescribed information to enable the holding of scheduled elections for the national office since 2002 and for the Queensland branch since 2004.
Recent enquiries made by the Commission
[11] In 2012, the Regulatory Compliance Branch (RCB) of the Fair Work Commission (then Fair Work Australia), contacted the last known officers of the MHAA concerning the possible deregistration of the MHAA.
[12] In response to this communication, on 4 June 2012, one of the last known officers of the MHAA, Mr Joseph Muscat lodged a purported objection to the cancellation on the grounds that the MHAA needed to convene to plan the future direction of the association. He sought a period of six months for this to occur.
[13] On 22 February 2013, the RCB sent letters to the MHAA’s registered office and to each of the last known members of its management committee, highlighting the MHAA’s failure to comply with its statutory obligations. The letter also referred to the Regulations that empower the Commission to cancel the registration of an organisation if it is satisfied that the organisation is defunct.
[14] There was one response to this letter. On 10 March 2013, one of the last known members of the management committee, Mr Eric Quabba, sent an email to the RCB stating that he had attempted to contact some of the other members of the MHAA. Mr Quabba said that that most of those members were no longer in the harvesting business, and that he did not think that the MHAA has a future.
[15] On 8 May 2013, I sent further correspondence to each of the last known members of MHAA’s management committee to indicate that I had commenced an action to consider whether the MHAA was defunct, and to provide a final opportunity to the members to make submissions with regard to the status of the organisation.
[16] No further correspondence from the MHAA or any other person has been received.
Decision
[17] In light of the Association’s history of non compliance, and the lack of response to recent enquiries,I am satisfied that the Mechanical Harvesters’ Association of Australia is defunct.
[18] Pursuant to subsection 30(1)(c) of the RO Act, I order that the registration of the MHAA be cancelled.
[19] The cancellation will take effect seven (7) days after the date of this decision so that the Regulatory Compliance Branch can attend to the various administrative aspects that flow from the cancellation.
VICE PRESIDENT WATSON
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