APPLICATION TO CANCEL THE REGISTRATION OF COMMUNITY EMPLOYERS WA

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2025 WAIRC 00298

DELIVERED : WEDNesday, 14 May 2025

FILE NO. : CICS 6 OF 2025

Applicant

AND

COMMUNITY EMPLOYERS WA

Respondent

Catchwords : Industrial Law (WA) – Application to cancel the registration of an organisation under s 73 of the Industrial Relations Act 1979 – Requirements of the Act and Regulations satisfied – Order made cancelling registration

Legislation : Industrial Relations Act 1979 (WA) s 54, s 73, s 73(12)  

Result : Order issued

Representation:

Counsel:

Applicant : Mr M McIlwaine of counsel

Respondent : Mr T Grey-Smith as agent

Solicitors:

Applicant : State Solicitor's Office

Case(s) referred to in reasons:

The Registrar v Master Hairdressers’ Association of WA, Industrial Union of Employers [2004] WAIRC 11936; (2004) 84 WAIG 2190

The Registrar, Western Australian Industrial Relations Commission v Construction Contractors Association of Western Australia [2016] WAIRC 00282; (2016) 96 WAIG 432

Reasons for Decision

THE COMMISSION IN COURT SESSION:

1         This is an application by the Registrar in accordance with s 73(12) of the Industrial Relations Act 1979 (WA) to cancel the registration of Community Employers WA, an organisation registered under s 54 of the Act.  The grounds of the application are as follows:

Grounds

5. Pursuant to sub section 73(12)(c), the Organisation has in the manner prescribed, requested that its registration be cancelled.

5.1. Regulation 75 sets out the manner in which an Organisation may request to cancel its registration.

5.1.1. Regulation 75(1) states that the request should be made to the Registrar in the approved form. At the time of making the application to the Registrar, the approved form was a Form 13.

5.1.2. Regulation 75(2) requires the Organisation to clearly state the grounds on which its request is made and contain sufficient evidence to satisfy the Registrar that the cancellation has the consent of the majority of the total number of members in the Organisation.

5.2. On the basis of the information provided within APPL 3/2025, the Registrar is of the view that there are sufficient grounds under section 73(12)(c) to cancel the registration of the Organisation. The evidence that supports this is set out in the attached statutory declaration.

2         The application was heard by the Commission in Court Session on 9 May 2025.  The application was consented to by the respondent. At the conclusion of the hearing, the Commission in Court Session was satisfied that the statutory requirements were met, and for reasons to be published in due course, an order would be made, cancelling the registration of the respondent.  These are our short reasons for so concluding.

3         Sections 73(12) and (12a) of the Act provide as follows:

(12) The Commission in Court Session must cancel the registration of an organisation if it is satisfied on the application of the Registrar that —

(a) the number of members of the organisation or, the number of employees of the members of the organisation would not entitle it to registration under section 53 or section 54, as the case may be; or

(b) the organisation is defunct; or

(c) the organisation has, in the manner prescribed, requested that its registration be cancelled.

(12a) The Registrar must make an application under subsection (12) in every case where it appears to the Registrar that there are sufficient grounds for doing so.

4         In this case reg 75 of the Industrial Relations Commission Regulations 2005 (WA) is also relevant.  It is in the following terms:

75. Request by organisation or association for cancellation of registration

(1) Any request by an organisation or association to cancel its registration must be made to the Registrar in the approved form.

(2) The request must state clearly the grounds on which the request is made and contain sufficient evidence to satisfy the Registrar that the cancellation has the consent of a majority of the total number of members of the organisation or association.

5         Where the Commission in Court Session is satisfied that the Registrar has been requested, in the manner prescribed, by an organisation to have its registration cancelled, the Commission in Court Session has no discretion, and must, by s 73(12)(c) of the Act, cancel the organisation’s registration: The Registrar, Western Australian Industrial Relations Commission v Construction Contractors Association of Western Australia [2016] WAIRC 00282; (2016) 96 WAIG 432 citing and applying The Registrar v Master Hairdressers’ Association of WA, Industrial Union of Employers [2004] WAIRC 11936; (2004) 84 WAIG 2190.

6         The application is supported by a statutory declaration of Ms Sarah Jane Kemp, Deputy Registrar of the Commission made on 28 February 2025. In her declaration Ms Kemp relevantly declared as follows:

Statutory Obligations: Organisation Records

3. The records of the WAIRC indicate that statutory obligations as prescribed by the IR Act and the Industrial Relations Commission Regulations 2005 (the Regulations) by way of annual financial returns and officers and membership returns have been consistently filed by Community Employers WA (the Organisation).

4. The Registrar delegates the responsibility for the review and assessment of registered organisation compliance matters to the Registered Organisation Compliance Lead (Ms Sophie Pontifex), including the statutory declarations lodged in accordance with section 63(2) of the IR Act referred to as an ‘officers and membership return’ and section 65(b) of the IR Act referred to as a ‘financial statements return’.

Annual Financial Statements Returns

5. Rule 18 – FINANCE of the rules of the Organisation registered with WAIRC (rules) prescribes a financial year. Sub rule 18.1 states that the ‘financial year for the Association shall end on 30 June in each year’. A copy of the registered rules of the Organisation is attached to this declaration and marked as Attachment SK-1.

6. The Organisation last submitted a financial statements return on 16 November 2023 for the 12 months ending 30 June 2023, which is attached to this declaration and marked as Attachment SK-2.

Annual Officer and Membership Returns

7. The Organisation most recently submitted an officers and membership return on 17 January 2024 (Attachment SK-3), which was later amended on 27 February 2024 (Attachment SK-4). In those returns it was reported that there were 169 members as at 1 January 2024.

8. On 21 February 2024, Ms Pontifex emailed the Organisation and asked that it file an amended officers and membership return to remedy some typographical defects identified within the statutory declaration that had been lodged on 17 January 2024. The organisation submitted an amended return on 27 February 2024 which rectified the issues identified by Ms Pontifex, however, changes to the office titles had been made that did not reflect the office titles identified within the rules. This change was queried with the organisation on 1 March 2024. A copy of that email thread is attached to this declaration and marked as Attachment SK-5.

9. On 5 March 2024, the Executive Director of the Organisation (Mr Tim Grey-Smith) responded to Ms Pontifex’s email. Mr Grey-Smith identified that unregistered changes had been made to the rules. A copy of that email is attached to this declaration and marked as Attachment SK-6.

PRES 14/2024

10. On 13 May 2024, Mr Grey-Smith contacted Ms Pontifex and informed her that the Organisation’s changes to rules made them incompatible with the IR Act and sought information on the deregistration process. A copy of that correspondence is attached and marked as Attachment SK-7.

11. On 26 September 2024 a member of the Organisation made an application pursuant to section 66 of the IR Act, which was accepted for filing by the Registry and identified as PRES 14/2024. A copy of that application is attached and marked as Attachment SK-8.

12. PRES 14/2024 was heard by Chief Commissioner S J Kenner, with reasons for decision and orders issued on 7 October 2024 (Attachment SK-9). The effect of those orders, which are operative until 30 March 2025, was to permit the Organisation to take the necessary steps towards cancelling its registration under the IR Act.

APPL 3/2025

13. A request to cancel the registration of the Organisation was made by the interim Secretary of the Organisation on the approved form on 6 February 2025 (APPL 3/2025). A copy of that application is attached and marked as Attachment SK-10.

14. On 19 February 2025, the interim Secretary of the Organisation provided a supplementary statutory declaration that stated that at the date the vote for dissolution and associated motions were put to members, there were 161 members of the organisation. A copy of that statutory declaration is attached and marked as Attachment SK-11.

15. In an annexure to the statutory declaration attached to APPL 3/2025, titled ‘Minutes – Annual General Meeting’, at Item 10, it identifies that 3 relevant motions were put forward at the Annual General Meeting of the Organisation held on 6 December 2024:

15.1. “That CEWA members approve of deregistering the organisation registered pursuant to the Industrial Relations Act 1979 (WA)”

15.2. “That members permit the interim board to take all necessary steps, make all required applications to the Registrar of WAIRC to deregister, and to represent the organisation in the subsequent application before the Commission in Court Session.”

15.3. “That members confirm the transfer of all funds and assets of the organisation registered in the WAIRC “Community Employers WA” to the entity registered under the Associations Incorporation Act 2015 (WA) “Community Employers WA Incorporated.”

16. As identified in the abovementioned annexure, at the time of the vote for dissolution being taken, 82 members of 161 eligible members of the Organisation voted in favour of cancelling the registration of the organisation under the IR Act. This is in accordance with order 7 of 2024 WAIRC 00879.

Conclusion

17. APPL 3/2025 demonstrates that the Organisation has, in the manner prescribed, requested that its registration be cancelled.

17.1. In compliance with regulation 75(1), this request was made by the Organisation on the prescribed form that is, a Form 13 - Application to Alter or Substitute the Rules of an Organisation or Association, Change its Name; or Suspend or Cancel its Registration (Form 13). A copy of the Form 13 is contained within Attachment SK-10.

17.2. In APPL 3/2025 the Organisation provided a Statutory Declaration which set out the grounds on which the request was being made, and as set out above in paragraphs 15 - 16, provided sufficient evidence to satisfy me that the cancellation of the registration had the consent of a majority of the total number of members of the organisation, in compliance with regulation 75(2).

18. It is on the basis of the information declared above that I make this application to the Commission in Court Session in accordance with section 73( 12a) of the IR Act and regulation 76 of the Regulations.

7         Having regard to the application and the evidence in support of it, the Commission in Court Session was satisfied that the requirements of the Act and the Regulations had been met.  The Commission was satisfied that the motion for dissolution of the respondent was carried in accordance with r 22 of the respondent’s Rules, as modified by the Commission’s order in Save the Children v Community Employers WA Inc [2024] WAIRC 00879; (2024) 104 WAIG 2233.  Furthermore, on 6 December 2024, at an Annual General Meeting of the respondent, the meeting minutes record that appropriate motions to cancel the registration of the respondent were put to a vote.  On the basis that 82 of 161 eligible members of the respondent voted in favour of the motions, the motion was carried. 

8         There are two minor matters arising under the Rules.  First, under r 11.1 the Secretary is required to give at least 14 days’ notice of a General Meeting to members.  This notice was given by the Executive Director rather than the Secretary, by an email dated 6 October 2024.  Second, in accordance with r 22.1, for the purposes of considering a motion for dissolution of the respondent, a General Meeting is required to be called.  However, the motions were considered and passed at an Annual General Meeting. 

9         Despite these irregularities, we are of the view that the Registrar, on the materials before her, could be satisfied that the cancellation of the respondent had the consent of a majority of the total number of members of the respondent.  A similar issue of non-compliance with an organisation’s rules in an application under s 73(12) of the Act arose in Construction Contractors Association.  In that matter, at [19]-[21] Kenner C (as he then was) observed that:

[19] One matter requires comment. During the course of the hearing before the Full Bench, it became apparent that the Association had served notices of a council meeting to be held on 15 April 2015 and the general meeting to be held on 20 May 2015, by email and not by personal service or by post as referred to in its rules. Despite this, in my view, and irrespective of any savings provision in the Association's rules, for the following brief reasons, such an omission would not invalidate the request to the Registrar. The Registrar had ample evidence before her for the purposes of reg 75(2), that a majority of the total number of members of the Association consented to the Association's cancellation.

[20] Applications made by the Registrar under s 73(12) are distinguishable from others that may be brought by organisations themselves under Part II Division 4 of the Act, such as for their registration under ss 53 or 54 or, for the alteration of registered rules under s 62. In those types of applications it is clear that the statute prescribes particular procedural steps that must be followed by an organisation and strict compliance with them is necessary. For example, applications to alter registered rules under s 62 are required to be 'authorised in accordance with the rules of the organisation': s 62(3)(a) Act. Substantial compliance is not sufficient: State School Teachers Union of WA (Inc) (1997) 78 WAIG 1129; The Electrical and Communications Association of Western Australia (Union of Employers) (2007) 87 W AIG 2899. Whether a statutory scheme requires strict compliance or whether substantial compliance is sufficient, is to be ascertained from the language of the legislation concerned: State School Teachers' Union of WA (Inc) at 1129.

[21] In contrast to ss 55 and 62 of the Act, in this case, neither s 73(12) nor regs 75 and 76, require the Registrar to be satisfied that there has been compliance with an organisation's rules, as a prerequisite to making an application to cancel its registration. All that is required is that there is 'sufficient evidence' that the proposed cancellation has the consent of a majority of the members. In this case there was ample such evidence upon which the Registrar could form that view. The Registrar, having formed that view and being satisfied there were sufficient grounds for making an application under s 73(12), was required to make such an application: s 73(12a) Act. In the circumstances of this matter, substantial compliance with the rules of the Association enabled the Registrar to reach the requisite view in circumstances where strict compliance with its rules is not a statutory requirement. In my view, the Full Bench can be satisfied that the Association has, in the manner prescribed, requested that its registration be cancelled and an order should be made accordingly.

10      For the foregoing reasons, the Commission in Court Session made orders cancelling the registration of the respondent with effect on and from 9 May 2025.