F100423539

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE REGISTRAR

APPLICANT

 -and-

 MASTER HAIRDRESSERS' ASSOCIATION OF WA, INDUSTRIAL UNION OF EMPLOYERS

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  COMMISSIONER J F GREGOR

DELIVERED MONDAY, 5 JULY 2004

FILE NO/S FBM 4 OF 2004

CITATION NO. 2004 WAIRC 11936

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Catchwords  Industrial Law (WA) – Application by the Registrar to cancel the registration of an organisation – Organisation “defunct” – No duly elected office bearers – No duly elected Management Committee – No financial members – Organisation unable to validly conduct its affairs – Application granted – Industrial Relations Act 1979 (as amended), s7, s27(1)(v), s58(1), s60(3), s73(12)(b), Interpretation Act 1984, s56, Industrial Relations Commission Regulations 1985, s89(2)

Decision  Application granted

Appearances

Applicant   Ms D MacTiernan, Deputy Registrar

Respondent   Mr T Viljoen, Past President

_______________________________________________________________________________

Reasons for Decision

INTRODUCTION

1          This matter came before the Full Bench pursuant to s73(12)(b) of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”).

2          S73(12)(a), (b) and (c) provide as follows:-

“(12) The Full Bench shall 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;

(b) the organisation is defunct; or

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

3          S73(13) of the Act provides as follows:-

“Proceedings for the cancellation or suspension of the registration of an organisation, or any of its rights under this Act, shall not be instituted otherwise than under this section.”

4          This application was made pursuant to s73(12), as it is required to be made, by the Registrar, and was competent.

5          At all material times, the applicant has been the Registrar as defined in s7 of the Act.  At all material times, the respondent has been an organisation registered under the Act, and as defined in s7 of the Act.  In fact, it was an organisation of employers.

6          The grounds upon which the application was made were set out in an annexure to the application in the form of a statutory declaration declared herein and filed by Deputy Registrar Diana MacTiernan.  There was a further declaration declared by Deputy Registrar Susan Bastian.

7          On or about 15 January 2003, representatives of the respondent, being Mr Tim Viljoen, immediate past president, and Ms Gloria Ridolfo, acting secretary, who had been office bearers until the end of 2002, had a meeting with Deputy Registrar Diana MacTiernan.  They wished to ascertain how they could formally wind up the association and seek cancellation from registration under the Act.

8          The evidence was and the particulars were as follows:-

(a)          That no one in the organisation at the date of the application, held any of the official office bearer positions in the respondent as no nominations had been received at the annual general meeting in 2002.  Rule 11 provided that the positions for office bearers who form the committee of management are elected at the annual general meeting.

(b)          That at a special general meeting of members held on 3 December 2002, a winding up motion had been put and passed.  That meeting had a quorum but the motion was not valid under rule 22 of the association which is an express rule, providing for dissolution of the organisation.

9          Mr Viljoen said that the organisation was now defunct since members would not rejoin in 2003 and there were no office bearers and no committee of management.

10       On 28 February 2003, Deputy Registrar MacTiernan wrote to the association seeking answers to the following questions:-

(a)          Does the organisation have any financial members?

(b)          If yes to the above, how many?

(c)          Does the organisation’s committee of management continue to meet in accordance with the rules and objects of the association?

(d)          If the organisation has ceased to effectively operate, a brief explanation why this situation has arisen.

11      There was further correspondence, and on 19 June 2003 there was a response by way of statutory declaration from Mr Timothy Gerald Viljoen, past president, in which he advised that:-

“1. As of the 31st March 2003 the Master hairdresser’s Association of W.A. Industrial Union of Employers has no financial members.

2. The management committee of the above organization no longer meets in accordance with the organisations rules and objects.
3. The above organisation has ceased to operate effectively due to a declining membership and unsuccessful attempts to bring new or old members onto the executive committee of management to fulfil office bearer role for existing members who wished to stand down.
4. A special resolution was tabled at a special general meeting to voluntarily wind up the Association because there was no effective committee of management.”

12      The minutes of meetings held in 2002 were tendered, as were six other documents.

13      Mr Viljoen who attended the hearing of this application as past president confirmed to us that since December 2002 the respondent had not functioned, had had no elections, no members and no office bearers and no committee of management.  There was no evidence that this was likely to change.  That is in substance, also, what was conveyed to the Registrar, of course, and to which I have referred above.  In short, the organisation was at the time of hearing without office bearers because persons would not make themselves available to conduct its affairs.  No sufficient persons or none at all were available to become office bearers, and there were no financial members.  The organisation was at the time of hearing and had been for some time defunct, as I will discuss further hereinafter.

14      There is no evidence that any request by the organisation had been made in accordance with Form 31 of the Industrial Relations Commission Regulations 1985 (as amended) (hereinafter called “the Regulations”).

15      I am satisfied and find that no person having been nominated for or elected to any office or position in the organisation in accordance with rule 11 since at least 2002, there were no officers of the organisation after 2002.  I am satisfied and further find that the organisation purported to formally decide, albeit invalidly, to wind itself up at a special meeting in December 2002.  It is also clear, and I find, that the organisation could not and did not function without its officers or a committee of management and was therefore unable to conduct any of its affairs validly or at all after December 2002.  The organisation has simply not operated.  Indeed, members did not rejoin in 2003 and there were no financial members as at 31 March 2003, or, it is fair to find, after that.  Further, no management committee has met, and there is no evidence that any other governing bodies of the organisation have met.  That is, of course, because there are no members and there were no elections of officers.  All that means, of course, is that the organisation cannot and could not serve its members and/or represent them industrially, or function on any day to day or other basis.  I am so satisfied, and so find.

16      The word “defunct” means, in its most relevant definition, “no longer operative” (see The Macquarie Dictionary, 3rd Edition).

17      I am satisfied and find, on all of that evidence, that the respondent is no longer operative, has not been for almost 18 months, has no prospect of ever being operative again, and is therefore “defunct” within the meaning of s73(12)(b) of the Act.

18      Once the Full Bench is satisfied, on the application of the Registrar, that an organisation is defunct, it is required by the use of the mandatory word “shall” in s73(12) to cancel the registration of that organisation (see also as to the interpretation of the word “shall” s56 of the Interpretation Act 1984).

19      The decision is not therefore a discretionary decision. 

20      It is quite clear, therefore, and the Registrar has established, that the organisation is defunct in that it is entirely inoperative and with no prospect of becoming operative, and that the Full Bench being so satisfied, as I would find I would be, then the Full Bench is required to cancel the registration of the respondent organisation.

21      I would add that service of the application was effected at an address of the respondent different from that which appears in the rules (rule 1).  Under the Regulations, service of the application is required to be made in the manner prescribed by s60(3) of the Act in the case of an organisation.  That service is required to be effected pursuant to the Act, in any event, and s58 thereof, as well as s60(3).

22      S60(3) reads as follows:-

“The service on an organisation of any process, notice, or document of any kind may be effected by delivering it to the secretary or principal executive officer of the organisation or by leaving it at the office referred to in section 58 or by posting it to that office by certified mail addressed to the secretary of the organisation or in such other manner as may be prescribed.”

23      S58(1) reads as follows:-

“(1) Where, under this Act, the Registrar is authorised by the Full Bench to register an organisation he shall so register it by registering — 

(a) its name;

(b) its rules; and

(c) the address of the office where the business of the organisation is conducted,

and shall thereupon give to the organisation a certificate in the prescribed form which until cancelled is, subject to this Act, conclusive evidence of the registration of the organisation under this Act and of the organisation having complied with the prescribed conditions that entitle it to be so registered.”

24      In other words, unless there is a prescription otherwise, service may only be effected, in the express words of the Act, at the office registered by the Registrar as the office of any organisation.  In this case, the application was forwarded pursuant to the last known postal address, namely Box 549, North Perth, addressed to the acting secretary, Ms Gloria Ridolfo, and also at a different address to Mr Viljoen as the former past president.  An answer consenting to the orders sought was filed signed by Mr Viljoen but not sealed.  There was, on the face of it, no valid service pursuant to s58 and s60(3) of the Act and regulation 89(2)(a) of the Regulations, because neither address was the registered address or the address appearing in the rules and the respondent was not at its registered address.  However, I see no exclusion in the Act or the Regulations of the exercise of power under s27(1) of the Act, thus, the Full Bench can validate the service as substituted, having regard to Mr Viljoen’s attendance, the filing of a consenting answer, and the de facto request to the Registrar to proceed with this application, together with the involvement throughout on a de facto basis of Mr Viljoen or Ms Ridolfo in deciding that the service should be validated as substituted service.  These facts are particularly cogent when considered with the fact that there is no other valid form of service available pursuant to s60(3) of the Act, and because the respondent organisation is not at its registered address.  Indeed, it does not have one.  It is a mere post box, which is not an address. 

25      Normally, of course, such a matter would not be entertained unless an application for substituted service was made before the hearing.  However, the circumstances in this case are exceptional, and I would find that there was valid service by way of substituted service approved now by the Full Bench pursuant to s27(1)(v).

26      It may, of course, be argued in a subsequent matter that no such power exists in the Commission, having regard to s58 and s60 of the Act.  All I would say in relation to that is that, if that argument were put, one would deal with it on the merits at the time.  However, in the absence of such an argument, what I have found above is, I think, validly found.

27      I should add that the actions of the acting secretary, Ms Ridolfo, and even more those of the past president, Mr Viljoen, both of whom attempted to serve the organisation, even though they no longer held office, and who saw this matter through, were truly commendable.

28      For all of those reasons, I joined with my colleagues in making the order which the Full Bench made.

CHIEF COMMISSIONER W S COLEMAN:

29      I have had the benefit of reading the Reasons for Decision of His Honour the President.  I agree with those reasons and have nothing further to add.

COMMISSIONER J F GREGOR:

30      I have had the benefit of reading the Reasons of Decision of His Honour the President.  I respectfully agree with the conclusions that he reached and have no further comments to add

THE PRESIDENT:

31      For those reasons the Full Bench granted the application.