Application to cancel the registration of the Construction Contractors Association of Western Australia

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00282

DELIVERED : THURSDAY, 5 MAY 2016

FILE NO. : FBM 1 OF 2016

Applicant

AND

Construction Contractors Association of Western Australia

Respondent

CatchWords : Industrial Law (WA) - Application by the Registrar to cancel the registration of an association on grounds the association has, in the manner prescribed, requested that its registration be cancelled - Principles applied - Registration cancelled

Legislation : Industrial Relations Act 1979 (WA) s 23(12), pt II div 4, s 53, s 54, s 55, s 62, s 62(3)(a), s 63, s 67(1), s 67(3), s 73(12), s 73(12)(c), s 73(12a), s 73(13)

Industrial Relations Commission Regulations 2005 (WA) reg 75, reg 75(2), reg 76, reg 78

Result : Order made

Representation:

Applicant : Mr D Anderson (of counsel)

Respondent : Mr C Fitzhardinge

Solicitors:

Applicant : State Solicitor's Office

Case(s) referred to in reasons:

State School Teachers Union of WA (Inc) (1997) 78 WAIG 1129

The Electrical and Communications Association of Western Australia (Union of Employers) (2007) 87 WAIG 2899

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

Reasons for Decision

SMITH AP AND EMMANUEL C:

1         This application to cancel the registration of the Construction Contractors Association of Western Australia (the association) came before the Full Bench on 26 April 2016 pursuant to s 73(12)(c) of the Industrial Relations Act 1979 (WA) (the Act).

2         Section 67(1) of the Act enables industrial associations to be registered as an association under the Act.  Pursuant to s 67(3) of the Act, the provisions of the Act relating to organisations and their rules, among other matters, extend and apply, with such modifications as are necessary, to a registered association.

3         Section 73(12)(c) of the Act provides that the Full Bench shall cancel the registration of an organisation if it is satisfied on the application of the Registrar that the organisation has, in the manner prescribed, requested that its registration be cancelled.  Pursuant to s 73(12a) of the Act, the Registrar is required to make an application under s 73(12) in every case where it appears to him or her that there are sufficient grounds for doing so.  Section 73(13) of the Act also relevantly provides that proceedings for the cancellation of the registration of an organisation, or any of its rights under the Act, shall not be instituted otherwise than under this section.  These provisions raise a mandatory obligation on the Registrar to bring an application where he or she is satisfied of the requisite matters and it is only the Registrar who can bring such an application.

4         The association consents to the application.  On 20 January 2016, the chief executive officer of the association filed a notice of answer admitting the facts stated by the Registrar in the application.

5         At the conclusion of the hearing, the Full Bench informed the parties that the grounds of the application had been made out and that an order would be made to cancel the registration of the association.  On 26 April 2016, an order was made that the registration of the association be cancelled as and from 26 April 2016:  [2016] WAIRC 00244.  The reasons for making the order are as follows.

6         Where the Full Bench is satisfied on the application of the Registrar that an organisation has, in the manner prescribed, requested that its registration be cancelled, the Full Bench has no discretion, it must cancel the registration of the organisation or association:  see The Registrar v Master Hairdressers' Association of WA, Industrial Union of Employers [2004] WAIRC 11936; (2004) 84 WAIG 2190).

7         The prescribed procedure for cancellation of an organisation or association is set out in reg 75 of the Industrial Relations Commission Regulations 2005 (WA) (the Regulations).  Regulation 75 requires that any request by an organisation or association to cancel its registration must be made to the Registrar in the form of Form 22.  A 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.

8         As required by reg 75, the association made a request to cancel its registration by filing prescribed Form 22 on 3 November 2015 (the request).  Attached to the request is a schedule of the grounds upon which the request is made and a statutory declaration made by the secretary of the association, Christopher Berkeley Fitzhardinge.

9         The grounds upon which the request is made is set out in the schedule as follows:

1. The Construction Contractors Association of Western Australia (CCA) has been considering seeking cancellation of its registration for over eight years as it does not deal in industrial matters and is able to represent the interests of its members through a simple incorporated association.

2. In October 2014 the CCA established the Western Australian Major Contractors Association (inc) (MCA (WA)) as an incorporated association under the Associations Incorporations [sic] Act 1987 to allow it to seek cancellation of the registration of CCA whilst continuing to be able to operate in Western Australia.

3. The grounds for seeking cancellation of registration of CCA are:

(a) CCA does not need to be registered with the WA Industrial Relations Commission (WAIRC) to be able to operate and be able to represent the interests of its members as it does not deal in employment, union or industrial matters other than improving safety

(b) CCA has not acted as 'a State industrial union of employers' for more than ten years and has not used 'arbitration and conciliation' regarding employment of labour nor taken steps to 'settle strikes or disputes' as an association

(c) It has been challenging for CCA to fully meet the election and reporting requirements with the limited administrative resources available to it and its small number of members

(d) CCA has established MCA (WA) and will be able to use this simple incorporated association to be able to effectively operate with a much lower administrative burden

(e) It is more appropriate for the roles of advocacy, information sharing, pursuit of innovation, safety and networking to operate as an incorporated association

10      Attached to the request is a statutory declaration made by Mr Fitzhardinge on 29 October 2015 in which:

(a) he states that the association has authorised him to make an application pursuant to s 23(12) of the Act and reg 75 of the Regulations to cancel the registration of the association;

(b) he states that the cancellation has the support of the majority of the total members of the association;

(c) he refers to and attaches minutes of a council meeting of the association held on 15 April 2015 which was convened to consider motions to deregister the association;

(d) he sets out and attaches a notice to convene a special general meeting of members to consider resolutions to dissolve the association and to make an application to the Registrar of the Commission for cancellation of the association; and

(e) he attaches the minutes of a special general meeting held on 20 May 2015 which records the resolutions made by the members to enable the cancellation of the registration, and dissolution of, the association.

11      The relevant rules of the association which provide for the dissolution of the association are as follows:

(a) Rule 63 of the rules of the association provides as follows:

(1) The Association may at a general meeting resolve by a majority of three-fourths of the votes cast that the Association be dissolved.

(2) If the Association is dissolved the following provisions shall apply:-

(a) The debts and the liabilities of the Association shall be discharged out of the assets of the Association.

(b) (i) The balance of the assets shall be given or transferred to some other association or institution having objects similar to the objects of the Association to be determined by the members of the Association at or before the time of dissolution.

(ii) If the balance of the assets cannot be given or transferred to an association or institution determined by the Association's members pursuant to sub-paragraph (i) then the assets must be given or transferred to a charitable trust.

(c) The Association shall be dissolved forthwith after the provisions of this Rule have been carried out.

(b) Rule 59 provides for the procedure to be followed by the association for the service of notices as follows:

(1) Notice may be served by the Association upon any member either:

(a) personally; or

(b) by sending it through the post in a pre-paid envelope to such member at the last address appearing in the Register;

and that notice shall be deemed to have been duly served upon the member in due course of post.

(2) Each member must advise the Secretary in writing of any change of address.

(c) Rule 38 provides that the council of the association shall consist of a president, vice-president, an honorary treasurer, and not more than seven councillors, all of whom must be elected and be a representative of a member company.

(d) Rule 47 provides that a quorum at council meetings shall be five councillors.

(e) Pursuant to r 49(1)(a), at least seven days' notice in writing must be given of all meetings of the council and the nature of the business to be submitted at the meeting must be stated in the notice.  Pursuant to r 49(2), the accidental omission to give notice of any council meeting or the non-receipt of any such notice by any of the members shall not invalidate the proceedings at or any resolution passed at such meeting.

(f) The council is empowered whenever it thinks fit to convene a special general meeting under r 22.

(g) Pursuant to r 21(2), at least 14 clear days' notice of a special general meeting must be given to every member specifying the place, day and hour of meeting and the nature of business to be transacted at the meeting.  Pursuant to r 21(3), no business of which notice has not been given shall be transacted at a general meeting without a resolution passed by a majority of three-fourths of the votes cast at the meeting.

(h) A quorum for a general meeting is, pursuant to r 25, 15 members or one-quarter of the members entitled to be present, wherever be the lesser, present or present by proxy and entitled to vote.

(i) Pursuant to r 23(2), the accidental omission to give notice of any general meeting or non-receipt of any notice of that general meeting by any of the members shall not invalidate the proceedings at or any resolution passed at that general meeting.

12      Susane Sabrina Hutchinson, the Registrar of the Commission, as of 13 January 2016, made a statutory declaration in respect of this matter on that date.  In her statutory declaration she sets out the following material facts:

(a) The Commission's records confirm that the most recent officers and membership return of the association was submitted in 2015, in satisfaction of the requirements of s 63 of the Act and reg 78 of the Regulations.  The return that was filed states as at 1 January 2015 there were 12 members of the association.

(b) Notice of a council meeting to be held on 15 April 2015 was sent by email to all council members of the association on 8 April 2015.  The notice provided information as to the nature of the business to be transacted, in particular in relation to the dissolution of the association.

(c) The minutes of the council meeting of the association held on 15 April 2015 record that eight council members attended.  The minutes also record that it was agreed to proceed with the dissolution and the council unanimously passed the following motions:

(i) to proceed with dissolution of the association and the matter be put to a special general meeting of members;

(ii) to institute action to progress the dissolution of the association, including dealing with winding up functions in accordance with the rules relating to dissolution by transfer of assets to the WA Major Contractors Association; and

(iii) to make application to the Registrar of the Commission for the cancellation of registration of the association.

(d) Pursuant to r 21, a notice of special general meeting was sent to each of the members by email on 15 April 2015.  The notice advised the members that the special general meeting would be convened on 20 May 2015.  The notice also set out the unanimously passed resolutions made by the council at its meeting in April 2015 and set out the four items of business to be transacted at the special general meeting.

(e) The minutes of the special general meeting held on 20 May 2015 record that 11 of the 12 members of the association were in attendance at the meeting.  The minutes also record that the following motions were passed by 11 votes in favour:

(i) that the meeting agree to dissolve the association;

(ii) that the meeting confirm that the balance of the assets, after debts and liabilities of the association are met, are to be transferred to the Western Australian Major Contractors Association being an association with similar objects;

(iii) that the meeting agree to transfer the business name 'Construction Contractors Association of Western Australia' to the Western Australian Major Contractors Association; and

(iv) that the meeting agree to make application to the Registrar of the Commission for the cancellation of registration of the Construction Contractors Association of Western Australia.

(f) On 18 November 2015, the association was requested to provide to the Registrar information as to whether the association had any debts, liabilities, funds or property and if so what steps have been taken (or needed to be taken) to satisfy the debts and liabilities and dispose of the funds and property.

(g) By email of 30 November 2015, the association provided a signed copy of the association's audited accounts and advised that it does not hold any assets other than cash and that it intended to transfer the cash to the WA Major Contractors Association Inc when it is advised of the deregistration of the association.

13      In her statutory declaration, the Registrar states that having regard to these matters she is of the opinion that the cancellation of the registration has the consent of the majority of the total number of members of the association as required by reg 75(2) of the Regulations.  Further, she is of the opinion that there appears to be sufficient grounds for her to make application under s 73(12) of the Act for cancellation of registration of the association.

14      When regard is had to all of the factual matters set out in these reasons for decision, it was clear to the members of the Full Bench that the requirements of the rules of the association had been met for not only the dissolution of the association, but also that it is satisfied that the members of the association have consented to a request that registration of the association be cancelled.  The only matter that arose where it could be said that the rules of the association were not complied with is that pursuant to r 59 of the rules of the association notices cannot be served by the association upon any member by email, but only by personal service or by post.  However, the Full Bench found that failure to comply with r 59 by service of the notices by email did not invalidate the resolutions passed at the meeting of council or the special general meeting.  Pursuant to r 49(2) and r 23(2) of the rules, the non-receipt of any notice of a general meeting or a notice of a council meeting does not invalidate the proceedings or any resolution passed at those meetings.  In the absence of such savings provisions in the rules, it could not have been said that the rules of the association had been complied with or that consent of the members had been given in accordance with the requirements of the rules.  However, these provisions expressly saved the validity of the resolutions that were passed at the meetings.  In any event, it is plain that a significant number of members, being 11 out of the 12 members of the association, were in attendance at the special general meeting and gave their consent to a request that the registration of the association be cancelled.

15      When regard is had to these reasons we were satisfied that the requirements of the rules of the association, the Act and the Regulations had been complied with and formed the opinion that the application should be granted and an order be made that the association be cancelled.

KENNER C:

16      The Registrar of the Commission has sought an order of the Full Bench cancelling the registration of the Construction Contractors Association of Western Australia under s 73(12) of the Industrial Relations Act 1979.  The application by the Registrar has been made in accordance with reg 76 of the Industrial Relations Commission Regulations 2005.  The grounds of the application and the evidence in support of it are set out in the reasons of Smith AP and Emmanuel C which need not be repeated.

17      In short, the Registrar, based upon a request made to her by the Association under reg 75 of the Regulations, was satisfied that the cancellation of the Association has the consent of a majority of the total of the Association's members.  That satisfaction is based on a statutory declaration made by the Secretary of the Association, Mr Fitzhardinge dated 29 October 2015.  He declared that a special general meeting of the Association was held on 20 May 2015, which recorded a resolution of the members present to seek the cancellation of the Association under the Act and indeed, its dissolution.  The evidence available to the Registrar showed that 11 of the 12 members of the Association are in favour of the request to the Registrar to cancel the Association's registration.

18      At the hearing of the application the Full Bench was satisfied that the Association had, in the manner prescribed, made the request and that an order should be made under s 73(12)(c) of the Act.  Indeed, on the Full Bench being so satisfied, it is obliged to make such an order, as the terms of s 73(12) do not confer any discretion.  So much so is clear by the reference to the mandatory language of s 73(12), prescribing that the Full Bench 'shall cancel' an organisation's registration where such a request, 'in the manner prescribed', has been made to the Registrar.

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 WAIG 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.