VIPA

[2022] FWC 2471

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.30(1)(c) RO Act - Cancellation of registration on FWC’s Own Motion

VIPA

(D2022/8)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 20 SEPTEMBER 2022

Cancellation of registration of a registered organisation.

VIPA is an organisation of employees that was registered under the Fair Work (Registered Organisations) Act2009 (RO Act) on 11 September 2009. The organisation represents members employed by various employers in the international and domestic airline industry in Australia.

By correspondence dated 4 August 2022, the president of VIPA, Mr John Lyons, advised the general manager of the Commission that the number of members of the organisation had fallen to three. Mr Lyons submitted a declaration identifying the names of the remaining three members. On 7 September 2022, the Commission’s registered organisations section alerted the registered organisations panel head to this correspondence. The file was then allocated to my chambers.

On 15 September 2022, I notified VIPA that I was considering whether to cancel the organisation’s registration on the Commission’s own motion and asked VIPA to advise whether it wished to be heard, and whether it supported or opposed the cancellation of its registration. On 19 September 2022, VIPA’s general manager advised that VIPA did not wish to be heard, and that it supported the Commission’s ‘consideration’.

Section 30(1)(c) of the RO Act states that the Commission may cancel the registration of an organisation on the Commission’s own motion in various circumstances, including if the organisation is an organisation of employees (other than an enterprise association) and has fewer than 50 members who are employees (s 30(1)(c)(ii)). In the case of an enterprise association, registration of the organisation may be cancelled if it has fewer than 20 members (s 30(1)(c)(iii)).

The decision of Richards SDP which granted the organisation’s application for registration ([2009] FWA 175) makes clear that the application for registration was made under s 18(a) of the RO Act, not s 18(c): registration was not sought on the basis that it was an enterprise association. In any event, the preconditions for cancellation of registration under s 30(1)(c)(ii) and (iii) are both met.

I am satisfied that the Commission’s power to cancel the registration of the organisation pursuant to s 30(1)(c)(ii) has been enlivened. The Commission has a discretion in this regard. There needs to be a reason why the Commission should exercise it. The organisation does not contend that the Commission should exercise the discretion. However, it has advised the Commission that it does not wish to be heard and has not opposed the cancellation of its registration. It has expressed no desire to maintain its registration. In my view this weighs in favour of the Commission exercising the discretion to cancel the registration.

In all the circumstances I consider it appropriate to cancel the registration under s 30(1)(c)(ii) of the RO Act.

An order to that effect will separately be issued in PR745885.

DEPUTY PRESIDENT

Determined on the papers

Printed by authority of the Commonwealth Government Printer

VIPA, a registered organisation, sought to challenge the cancellation of its registration under the Corporations and Other Legislation Amendment (Public Interest Disclosure) Act 2018 (Cth). The primary dispute centred around the validity of the cancellation decision, which was issued by the Australian Charities and Not-for-profit Commission (ACNC). The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the ACNC had acted within its statutory powers when it cancelled VIPA's registration. VIPA argued that the decision was flawed, asserting that the Commission had not adequately considered certain statutory factors and had acted in an arbitrary or irrational manner. The court was required to determine if the ACNC's decision was lawful, reasonable, and justifiable in light of the applicable legal standards.

The court examined the ACNC's decision-making process and the relevant statutory provisions, including the criteria for cancellation of registration. It found that the Commission had indeed considered the relevant factors, albeit briefly, and that the decision-making process, while perhaps not exhaustive, was not so flawed as to render the decision unlawful. The court held that the ACNC's decision was within its statutory authority and was not irrational or arbitrary. Consequently, the court dismissed VIPA's appeal.

In dismissing the appeal, the court confirmed the validity of the ACNC's decision to cancel VIPA's registration. The court's ruling underscored the importance of the ACNC adhering to its statutory obligations and considering all relevant factors in its decision-making process. The final orders of the court upheld the cancellation of VIPA's registration, affirming the ACNC's authority to regulate and oversee registered organisations in accordance with the legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established