Private Hospitals Industrial Association of Australia
[2011] FWA 6875
•11 OCTOBER 2011
[2011] FWA 6875 |
|
DECISION |
Fair Work (Registered Organisations) Act 2009
s.30(1)(c) RO Act - Cancellation of registration on FWA's Own Motion
Private Hospitals Industrial Association of Australia
(D2011/2500)
VICE PRESIDENT WATSON | SYDNEY, 11 OCTOBER 2011 |
Cancellation of registration on Fair Work Australia’s own motion - Private Hospitals Industrial Association of Australia - Fair Work (Registered Organisations) Act 2009 s 30(1)(c)(i).
Introduction
[1] The Private Hospitals Industrial Association of Australia (‘PHIAA’) was registered as an organisation under Industrial Relations Act 1988 (‘the IR Act’) by the Australian Industrial Registry on 6 January 1992.
[2] On 25 November 1996 the IR Act was renamed and amended by the Workplace Relations Act 1996 (‘the WR Act’). With effect from 1 July 2009 all of the provisions of the WR Act with the exception of Schedules 1 and 10 were repealed and the WR Act was renamed the Fair Work (Registered Organisations) Act 2009 (‘the RO Act’).
Relevant Legislation
[3] Section 30 of the RO Act is entitled ‘Cancellation of Registration on Technical Grounds, Etc.’. Specifically subsection 30(1) provides:
“(1) FWA 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 FWA 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 FWA’s own motion, if:
(i) FWA 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.”
[4] Sub-section 30(2) requires that before FWA cancels the registration of an organisation under either paragraph 30(1)(b) or (c) it must give the organisation an opportunity to be heard in relation to the application or motion.
[5] If FWA elects to commence a deregistration under paragraph 30(1)(c), the Fair Work (Registered Organisations) Regulations 2009 (‘the RO Regulations’) set out the actions with which FWA must comply in order to satisfy itself that an organisation is defunct. Regulation 36 is entitled ‘Cancellation of Registration of Defunct Organisation’ and states
“(1) For paragraph 30(1)(c) of the Act, FWA must, with a view to satisfying itself that an organisation is defunct, comply with the following sub regulations.
(2) FWA 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 FWA at their postal addresses as last known to FWA.
(3) If, after inquiries made under subregulation (2), FWA fails to satisfy itself whether the organisation is defunct, FWA must publishin the Gazette a notice stating that:
(a) subject to consideration of any objections lodged in accordance with the notice, the registration of the organisation will, at the end of one month after the date of publication of the notice, be cancelled on the ground that the organisation is defunct; and
(b) a person who wishes to show cause why the registration of the organisation should not be cancelled on that ground may, within one month after the date of publication of the notice, lodge with FWA a notice of objection.
(4) A notice of objection must:
(a) be in the form set out in the Procedural Rules or in a form otherwise
approved by the President; and
(b) be lodged with FWA; and
(c) comply with the requirements of regulation 14.
(5) If a person has lodged a notice of objection under paragraph (3)(b), FWA must give the person an opportunity to appear before it and to be heard in support of the objection.”
Consideration
[6] Since 2003 the PHIAA has failed to comply with a number of fundamental requirements set out initially in the WR Act and subsequently in the RO Act. These include failing to hold elections as prescribed in its rules, failing to lodge annual returns of office holders pursuant to s.233 of both the WR Act and the RO Act and failing to lodge financial statements pursuant to s.268 of both the WR Act and the RO Act.
[7] Fair Work Australia forwarded a letter dated 25 January 2011 to PHIAA and separately to each of the last known committee members at their last address as recorded with Fair Work Australia which relevantly stated as follows:
“It is noted that considerable correspondence has been forwarded to your organisation since approximately 2004 seeking compliance with the legislative requirements that stipulate registered organisations are to file information pursuant to s233 and Part 3, Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (‘the Act’) with Fair Work Australia (‘FWA’) and previously, with its predecessor the Australian Industrial Registry (‘AIR’), pursuant to Schedule 1 of the Workplace Relations Act 1996 (‘Schedule 1’) prior to 1 July 2009.
Pursuant to R.30 of your organisation’s rules, office holders may only hold terms for a maximum period of four years. Elections are due to be held every four years. According to the records lodged with the AIR, the last election that was granted for your organisation was in July 1997. Accordingly, your organisation would have been due to hold elections in 2001, 2005 and 2009. However your organisation has not provided the former AIR under Schedule 1 or FWA with any request to arrange an election of office bearers pursuant to s189(1) of the Act.
Section 233 of the Act requires that an organisation must lodge annually a statutory declaration signed by the secretary, or other prescribed officer, which reflects the record keeping requirements as set out in s230. This obligation was also set out in s233 of Schedule 1. It is noted that your organisation has failed, despite repeated requests, to lodge such an annual return since 2003.
Section 268 of the Act requires that an organisation lodge with FWA a general purpose financial report and a designated offer’s certificate within 14 days of conducting its general meeting where it presented the financial documents to members. This meeting is to take place within six months of the end of the organisation’s financial year. This obligation was also set out in s268 of Schedule 1. Again it is noted that your organisation has failed, despite repeated requests, to lodge such a financial reports since 2003.
As there has been no contact from your organisation and no lodgement of the required documentation as set out above, I advise that FWA intends to take action under s30(1)(c)(i) of the Act which provides that FWA may cancel the registration of an organisation if FWA is satisfied that the organisation is defunct.
If your organisation believes that it is inappropriate for FWA to cancel its registration, it can lodge an objection with FWA. I enclose the relevant F61 Notice of Objection to the Cancellation of Registration of an Organisation for your assistance if required.
Should you seek to lodge a Notice of Objection, I would draw your attention to the following regulations of the Fair Work (Registered Organisations) Regulations 2009 (‘the RO Regs’) which state:
‘14 Content of notices of objections lodged with FWA
A notice of objection lodged with FWA must:
(a) state the name and address of the organisation, association or person lodging the notice of objection (the objector); and
(b) state the grounds of objection; and
(c) set out the particulars of each ground of objection; and
(d) briefly state the facts the objector relies on for each ground of objection.
15 Service of documents
(1) Every document lodged with FWA must be endorsed with:
(a) the name of the party lodging the document; and
(b) an address that may be used as an address for service.
(2) A document lodged by an association, organisation or person with an electronic mailing address may be endorsed with an electronic address for service.
(3) A document may be served electronically on an association, organisation or person with an electronic address for service.’
Should you wish to lodge a Notice of Objection to the Cancellation of your organisation’s registration, I request that it be lodged with FWA within one month of the date of this letter. If no objection notice is lodged within this period, this matter will be forwarded to a Tribunal member of FWA to consider deregistration of your organisation.”
[8] Neither a Notice of Objection to the Cancellation nor any form of submission has been received in response to the above letters.
[9] Fair Work Australia also undertook enquiries with two of the three last known members of the committee of management, Ms. Street and Ms. Lee, (the third, Mr. Regan, not being traceable) and the former APHIAA Executive Director, Ms. Fraumano. Such enquiries established that the APHIAA has not operated for at least three years as it did not have a quorum as required under its rules and it had no financial members, no bank account and no operating address.
Conclusion
[10] As a result of the above enquiries, I am of the view that Fair Work Australia has satisfied itself in the manner prescribed by sub regulation 36(2) of the RO Regulations that the APHIAA is defunct. Accordingly, pursuant to sub-paragraph 30(1)(c)(i) of the RO Act, I will order the cancellation of the registration of the APHIAA.
VICE PRESIDENT WATSON
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