Application to cancel the registration of Master Plasterers' Association of Western Australia Union of Employers

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2018 WAIRC 00352

DELIVERED : Thursday, 7 June 2018

FILE NO. : FBM 3 OF 2018

Applicant

AND

Master Plasterers' Association of Western Australia Union of Employers

Respondent

CatchWords : Industrial Law (WA) - Application to cancel the registration of an organisation on grounds the organisation is defunct

Legislation : Industrial Relations Act 1979 (WA), s 53, s 54, s 73, s 73(12), s 73(12)(b), s 73(12a), s 73(13)

Industrial Relations Commission Regulations 2005 (WA), reg 37, reg 76, reg 76(3)

Result : Order made

Representation:

Applicant : Mr R J Andretich (of counsel) and with him Ms S Kemp

Respondent : No appearance

Solicitors:

Applicant : State Solicitor for Western Australia

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

Reasons for Decision

THE FULL BENCH:

The application and the requirements of the Act

1         This is an application to cancel the registration of the Master Plasterers' Association of Western Australia Union of Employers (the union).  The application was brought by the Registrar before the Full Bench pursuant to s 73(12) of the Industrial Relations Act 1979 (WA) (the Act).

2         After hearing from counsel on behalf of the Registrar on 30 May 2018, the Full Bench made the order cancelling the registration of the union.  These reasons for decision set out the reasons why the Full Bench made the order.

3         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 her that there are sufficient grounds for doing so.  Section 73(13) 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 under s 73.

4         Where the Full Bench is satisfied on the application of the Registrar, in the manner prescribed, that the registration of an organisation be cancelled, the Full Bench is required by the use of the mandatory word 'shall' in s 73(12) to cancel the registration of the organisation:  The Registrar v Master Hairdressers' Association of WA, Industrial Union of Employers [2004] WAIRC 11936; (2004) 84 WAIG 2190.

5         Thus, where the Full Bench forms the requisite opinion that the following matters have been satisfied, the Full Bench is required to cancel the registration of an organisation:

(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 s 53 or s 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.

6         Whilst the grounds attached to the application state that the application is made pursuant to s 73(12) of the Act, it is clear that the application is brought pursuant to s 73(12)(b) on grounds that the organisation is defunct.

7         Regulation 76 of the Industrial Relations Commission Regulations 2005 (WA) (the Regulations) provides for the procedure that the Registrar must comply with when an application to cancel the registration of an organisation is made under s 73(12) of the Act.  Regulation 76 provides:

(1) Where an application is made by the Registrar under section 73(12) of the Act to cancel the registration of an organisation or association it is to be made in triplicate to the Full Bench in the form of Form 23.

(2) The application is to state clearly the grounds on which it is made and the application is to be accompanied by a statutory declaration setting out the facts on which the Registrar relies.

(3) The application is to be served on the organisation or association the registration of which is sought to be cancelled.

(4) Where the respondent organisation or association intends to oppose the application, it must give notice of that objection in an approved form within 14 days of being served with the application, and otherwise the provisions of regulation 15 apply with respect to any such objection.

(5) Where the respondent organisation or association intends to admit the facts (or any of them) on which the Registrar relies, it must, within 14 days of being served with the application, advise the Registrar in writing accordingly.

(6) After the expiration of the time prescribed in subregulations (4) and (5) the Registrar is to ascertain from the President a date for hearing the application and, as soon as practicable after setting a hearing date, is to notify the organisation or association of the hearing.

8         As required by reg 76, the Registrar (Susan Ivey Bastian) filed the application on 13 April 2018, together with a statutory declaration made by her.  The Registrar's statutory declaration sets out the grounds and facts upon which the application is made.

9         Whilst reg 76(3) of the Regulations requires that the application be served on the organisation the registration of which is sought to be cancelled, it is apparent from the matters set out in the statutory declaration of the Registrar, together with the correspondence and other documents on the Commission file, that although the organisation's registration is current, it has no officers or members nor an office upon which the Registrar could serve a copy of the application.

10      In these circumstances, the Full Bench was of the opinion that the requirement to serve the application on the organisation should be waived pursuant to reg 37 of the Regulations.

11      In the statutory declaration, the Registrar sets out the steps that have been taken over several years to ascertain whether there are any current or past officers of the union upon which service of the application could be effected.  These enquiries were fruitless.  Consequently, directions were given by the Full Bench that notice of the application be published in the Western Australian Industrial Gazette, a Western Australian newspaper and be placed on the website of the Commission.

12      In accordance with the direction, a notice of hearing was published in the West Australian Newspaper on Saturday, 19 May 2018, placed on the Commission website and published in the Western Australian Industrial Gazette on 23 May 2018 ((2018) 98 WAIG 252).

13      The Registrar in her statutory declaration sets out the following facts upon which she formed the opinion that the union is defunct:

(a) The union was dormant for a period of time, from 1989 to 1997.  In May 1997, elections of the union were held and new office bearers were elected.

(b) Mr Kenneth Spalding was elected as secretary and Mr Barry Egan was elected as president of the union.  In a letter from Mr Spalding to the Commission dated 16 March 1998, it was advised that the union had been re-established.

(c) Records held by the Commission indicate that the union had been compliant with its obligations under the Act until 1999 following its re-establishment.

(d) The union has failed to comply with its reporting obligations under the Act and the Regulations for many years, in that:

(i) the union last submitted a financial return in 1999.  That financial return relates to the financial period commencing on 1 July 1998 and ending on 30 June 1999; and

(ii) the union last submitted an officers and membership return in 2004.

(e) In April 2008, the Commission records indicate that Deputy Registrar Sue Hutchinson had both email and telephone communications with Mr Egan, in relation to elections for office bearers.  It was determined that after review of the rules of the union, the provision for elections were outdated and not in accordance with the Act.

(f) Following the discussion with Mr Egan, the Deputy Registrar contacted the Western Australian Electoral Commission for their advice on how it would deal with such matters, and it was determined that the rules of the union were outdated and the union should conduct its own internal elections.  Once office bearers were elected, it was anticipated that resolutions could be passed to alter the rules of the union to make accurate provision in terms of elections.

(g) Mr Egan advised that he would progress the matter at a future meeting of the union.  However, no further requests for information or assistance was subsequently received by the Commission. 

(h) Correspondence addressed to the union at their last known address, Post Office Box 374, South Perth, has been returned since August 2008.  Correspondence was subsequently forwarded to the residential address of Mr Spalding in September 2009.  However, this was also returned.

(i) On 13 November 2014, an email was sent to Mr Egan, using the email address held in the Commission records, requesting that he contact the Commission in relation to the status of the union.  This email was returned marked 'undeliverable'.

(j) On 13 November 2014, correspondence from the Commission was again forwarded to Mr Spalding at his last known address, requesting that he contact the Commission in relation to the status of the union.  No response was received.

(k) In February 2018, enquiries were made of Mr Michael McLean, executive director of The Master Builders' Association of Western Australia (Union of Employers), Perth about the union.  Mr McLean advised that he was unaware that the union had any members or that their office bearers continue to meet.

(l) On 13 February 2018, an online search was conducted by Commission officers of the union and information was provided by Yellow Pages Online, that the current address for the union was 38 Bessell Avenue, Como 6152.  A letter was sent to the secretary of the union care of this address.  As at 29 March 2018, no response to this letter had been received by the Commission.

(m) The last annual financial return filed by the union was for the financial year ended 30 June 1999.  This return reported an asset total of $6,368.  On 21 March 2018, an email was sent to the last known auditor of the union, KHT Accounting (formerly Heal & Brandli), seeking information regarding the assets of the union.  On 22 March 2018, the practice manager of KHT Accounting, Ms Tracey Allmark, advised the Commission that all historical records from 1999 have been destroyed and there are no electronic records available.

14      In these circumstances, whilst it is unknown what happened to any assets of the union, it is the opinion of the Full Bench that, given the number of unsuccessful attempts made by officers of the Commission to contact any past or present office bearers of the union and the information provided by the last known auditors, it is clear the union is defunct.

15      After hearing from Mr Andretich on behalf of the Registrar, the Full Bench made an order that 'the registration of the Master Plasterers' Association of Western Australia Union of Employers be and is hereby cancelled on and from the 30th day of May 2018'.