APPLICATION TO CANCEL THE REGISTRATION OF THE ELECTRICAL AND COMMUNICATIONS ASSOCIATION OF WESTERN AUSTRALIA (UNION OF EMPLOYERS)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00279

DELIVERED : MONDAY, 27 JUNE 2022

FILE NO. : CICS 4 OF 2022

Applicant

AND

The Electrical and Communications Association of Western Australia (Union of Employers)

Respondent

Catchwords : Industrial Law (WA) – Application by the Registrar to cancel the registration of an organisation – Organisation has few remaining members – Organisation defunct and requested cancellation of registration – Application granted

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

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

Result : Application granted

Representation:

Counsel:

Applicant : Mr J Carroll of counsel

Respondent : Mr J Brits of counsel

Solicitors:

Applicant : State Solicitors Office

Respondent : ECA Legal

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

Background and statutory provisions

1         The present application is made under s 73(12) of the Industrial Relations Act 1979 (WA) and reg 76 of the Industrial Relations Commission Regulations 2005 (WA). Section 73(12) of the Act requires the Commission in Court Session to cancel the registration of an organisation registered under the Act if it is satisfied of certain matters, and is in the following terms:

73. Cancelling and suspending registration of organisation, procedure for

…

(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.

2         Given that s 73(12)(a) to (c) are expressed disjunctively, if the Commission in Court Session is satisfied that one or more of the matters in (a), (b) or (c) are met, then it must cancel the registration of the organisation.  Such a decision is mandatory and is not discretionary:  The Registrar v Master Hairdressers Association of WA, Industrial Union of Employers [2004] WAIRC 11936; (2004) 84 WAIG 2190.  Furthermore, if the Registrar is satisfied that grounds exist for the cancellation of the registration of an organisation, the Registrar is, under s 73(12a), obliged to make an application to the Commission in Court Session.

3         Regulation 75 of the Regulations sets out the procedure for a request to the Registrar by an organisation to cancel its registration. Regulation 76 sets out the procedure by which the Registrar makes an application to the Commission in Court Session under s 73(12) of the Act for the cancellation of the registration of an organisation.

4         In satisfaction of that requirement, the Registrar made an application on 10 May 2022, seeking the cancellation of the registration of the respondent on three grounds, they being:

(a) that in accordance with s 73(12)(a), the number of employees of members of the respondent would not entitle it to registration under s 54 of the Act;

(b) that in accordance with s 73(12)(b), the respondent is defunct; and

(c) that in accordance with 73(12)(c), the respondent, in the manner prescribed, has requested that its registration be cancelled.

The facts

5         A statutory declaration in support of the application, in accordance with reg 76(2)(b) of the Regulations was filed by the Registrar, Ms Bastian.  In it, she declared the facts upon which she relied to bring the application, annexing relevant documents.  Additionally, on 25 May 2022 the respondent filed a response to the effect that it had no objection to the application and consented to an order for the cancellation of its registration.

6         The application came on for hearing before the Commission in Court Session on 21 June 2022.  Having heard from the parties, the Commission in Court Session informed the parties at the conclusion of the hearing that the application to cancel the registration of the respondent would be granted and an order would be made. Short reasons were given, with more fulsome reasons to follow. These are those reasons.

7         In her statutory declaration filed in support of the application, Ms Bastian declared the following:

(a) that from Commission records the respondent has not filed annual financial returns and officers and membership returns since 20 November 2018 and 11 January 2019 respectively;

(b) in the respondent’s last financial return, filed on 20 November 2018, for the period 1 July 2017 to 30 June 2018, it was recorded that at a Special General Meeting held by the respondent on 24 October 2017, a proposal was put and carried that the business operations of the respondent be transferred to a new body “ECA WA Inc”.  Subsequently, on 30 June 2018, the assets of the respondent were transferred to the new entity and from that time the respondent engaged in no financial activity;

(c) on the last officers and membership return filed with the Registrar on 11 January 2019, it was noted there were nil members;

(d) that the last notification of election of office bearers was advised on 13 August 2014 and the last change of office bearers for the respondent occurred on 31 October 2018.  Advice to the Registrar to this effect was provided on 15 November 2018;

(e) on 6 October 2021, an application (APPL 33/2021) was made by the respondent, requesting the cancellation of its registration.  In support of that application, a statutory declaration by Mr Copeland, the Secretary of the respondent made on 6 October 2021, outlined the steps taken by the respondent under its Rules to authorize the making of the application by the respondent to cancel its registration.  This included the notice of, and the holding of a Special General Meeting held on 21 September 2021, to consider a resolution to dissolve the respondent.  The motion was carried unanimously by the remaining members of the respondent.  Mr Copeland declared that the respondent does not engage in trading, does not hold assets or elections or annual general meetings, and only retains four members.  The respondent viewed itself as being defunct.  In a supplementary statutory declaration filed on 14 December 2021, Mr Copeland declared that:

(i) the total number of employees employed by the four remaining members of the respondent is below 200; and

(ii) that the remaining members of the respondent supported the application to cancel its registration as an organization.

Conclusion

8         Given the grounds set out in the application and Ms Bastian’s statutory declaration, the Commission in Court Session was satisfied the evidence established the facts asserted and found accordingly.  In short, in this case, from the evidence before the Commission in Court Session, we were satisfied that the number of employees of members of the respondent would not entitle it to registration under s 54 of the Act; that the respondent is defunct; and that the respondent has, in the prescribed manner, requested and consented to its registration being cancelled.  Accordingly, an order now issues.