Western Australian Farmers Federation Industrial Association

[2014] FWC 2335

[2014] FWC 2335

FAIR WORK COMMISSION

DECISION

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

Western Australian Farmers Federation Industrial Association
(D2014/51)

VICE PRESIDENT HATCHER SYDNEY, 23 APRIL 2014

Cancellation of registration of defunct organisation.

[1] The Western Australian Farmers Federation Industrial Association (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 1 December 1977.

[2] The Association is experiencing significant difficulty in the conduct of its affairs. In the 2013 elections for its seven officer positions, it attracted only one nomination for election to office. As a consequence the Association has not since 25 July 2013 had a properly constituted committee of management. Six of its seven officer positions remain vacant, including those of Secretary and Treasurer. The Association has previously indicated that it wished to dissolve itself, but the lack of a properly constituted committee of management prevents it from doing so.

[3] Various legislative requirements of the RO Act and the associated Fair Work (Registered Organisations) Regulations2009 (RO Regulations) are predicated on the existence of validly elected officials who can transact business on behalf of their organisation. For example, item 42 of the Reporting Guidelines made under s.255 of the RO Act requires that a committee of management statement made in relation to a financial report be made in accordance with a resolution passed by the committee of management. In the absence of a properly constituted committee of management, it is clear that an organisation cannot meet its fundamental obligations under the RO Act.

[4] It has previously been held that “an organisation’s ability to meet its statutory requirements is predicated on having validly elected officials to conduct the business of the organisation within the prescriptions of the RO Act”. 1 Rule 23(4) of the Association states that at a meeting of the committee of management, three members shall form a quorum. It is therefore impossible for the Association’s committee of management to be properly constituted.

[5] Section 30(1)(c)(i) of the RO Act provides that the Fair Work Commission (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 ... ”

[6] 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.

[7] Regulation 36 of the 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....”

[8] Accordingly, on 11 March 2014 I sent a letter to the Association’s registered office and to the only member of the Association’s committee of management at his last known postal address setting out the Association’s incapacity to comply with the RO Act, providing notification of the proposed cancellation of registration and affording the opportunity to object to the proposed cancellation.

[9] No response was received to my correspondence.

[10] I am, after making these inquiries, satisfied that the Association is defunct within the meaning of s.30(1)(c)(i) of the RO Act. Accordingly, I will cancel the Association’s registration with effect on and from 30 April 2014. A separate order cancelling the Association’s registration shall be issued with this decision.

VICE PRESIDENT

 1   See Australian Writers’ Guild Association [2013] FWC 5510 at [4].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR549440>