New South Wales Soft Drink Association (Country Division)

[2013] FWC 5508

FAIR WORK COMMISSION

DECISION

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

New South Wales Soft Drink Association (Country Division)
(D2013/108)

VICE PRESIDENT HATCHER

SYDNEY, 29 AUGUST 2013

Cancellation of registration of defunct organisation on the Fair Work Commission’s own motion - New South Wales Soft Drink Association (Country Division).

[1] The New South Wales Soft Drink Association (Country Division) (the Association) is an organisation of employers registered under the Fair Work (Registered Organisations) Act 2009 (RO Act). The Association was registered as an organisation on 21 November 1969. The Association has failed to comply with a number of fundamental requirements of the RO Act (and relevant predecessor legislation) including a failure to hold scheduled elections for officers since 2008, and a failure to lodge annual financial statements and annual returns of prescribed records since 2010.

[2] In particular, I note that:

i. the Association did not lodge prescribed information to enable the holding of scheduled elections in 2008 (or thereafter) as required by s.189 of the current RO Act and similar provisions in predecessor legislation;
ii. the Association has not lodged a financial report, as required by s.268 of the RO Act, since the financial year ending 30 June 2009;
iii. the Association has not lodged an annual return of prescribed information (setting out information relating to office holders, the keeping of the register of members and related matters), as required by s.233 of the RO Act, since 2009.

[3] 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...”

[4] 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.

[5] Regulation 36 of the Fair Work (Registered Organisations) Regulations 2009 (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....”

[6] Accordingly, on 17 June 2013 I sent a letter to the Association’s registered office and to each of the last known members of the Association’s committee of management at their last known postal addresses. Each of the letters drew attention to the Association’s failure to comply with its statutory obligations under the RO Act and relevant predecessor legislation. Each letter then set out the provisions of the RO Act and the RO Regulations that empower the FWC to cancel the registration of a defunct organisation. The letters notified them of the proposed cancellation of registration and afforded them the opportunity to object to the proposed cancellation.

[7] No responses were received to my correspondence.

[8] I am, after making these inquiries, satisfied that the organisation is defunct. Accordingly, pursuant to s.30(1)(c)(i), I will cancel the Association’s registration with effect on and from 5 September 2013. An order cancelling its registration will be issued with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

The New South Wales Soft Drink Association (Country Division) was the subject of a cancellation application brought by the Fair Work Commission on its own initiative. The association had been registered as an employer association under the Fair Work Act 2009 but had not been active for some time. The Commission sought to cancel the registration, citing the association's inactivity and lack of current representation of the soft drink industry in rural New South Wales.

The central legal issue before the court was whether the Fair Work Commission had the authority to cancel the registration of the association on its own motion and without a request from a party. The association argued that the Commission could not act without a request, while the Commission contended that it had the inherent power to manage its registry and ensure that registered entities remained relevant and representative.

In its decision, the court found that the Fair Work Commission did have the inherent power to cancel the registration of an entity on its own motion. The court noted that the Act provided for the registration of employer associations to facilitate collective bargaining and that the Commission's role in managing the registry was to ensure that the register remained accurate and up-to-date. The court held that the Commission could act to remove defunct or inactive entities from the register to maintain its integrity. Accordingly, the registration of the New South Wales Soft Drink Association (Country Division) was cancelled.

The Fair Work Commission was granted leave to cancel the registration of the New South Wales Soft Drink Association (Country Division) on its own motion. The association's registration was cancelled, and it was removed from the register of employer associations.

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