APPLICATION TO CANCEL THE REGISTRATION OF THE WESTERN AUSTRALIAN GRAIN HANDLING SALARIED OFFICERS ASSOCIATION (UNION OF WORKERS)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 01027

DELIVERED : WEDNESday, 11 December 2024

FILE NO. : CICS 6 OF 2024

Applicant

AND

Western Australian Grain Handling Salaried Officers Association (Union of Workers)

Respondent

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

Legislation : Industrial Relations Act 1979 (WA)

Industrial Relations Commission Regulations 2005 (WA)

Fair Work Act 2009 (Cth)     

Result : Registration cancelled

Representation:

Counsel:

Applicant : Mr J Carroll of counsel

Respondent : Mr R Rankine

Solicitors:

Applicant : State Solicitors Office of Western Australia

Respondent : 

Case(s) referred to in reasons:

Registrar and Master Plasterers’ Association of Western Australia [2018] WAIRC 00352; (2018) 98 WAIG 312

Reasons for Decision

1         The Western Australian Grain Handling Salaried Officers Association (Union of Workers) (Organisation) is an industrial organisation of employees registered under s 53 of the Industrial Relations Act 1979 (WA).

2         The Organisation’s objects are to protect or further the interests of workers in or in connection with the grain handling industry. Employees engaged in the professional, executive or technical capacities in the grain handling industry are eligible for membership of the Organisation under its rules.

3         The Organisation was previously a party to the Grain Handling Salaried Officers Consolidated Award 1989. It was also party to an enterprise agreement made in 1996.  Both the award and the agreement applied to a single enterprise, operated by Cooperative Bulk Handling Limited (CBH). The Organisation’s members were historically drawn from that single enterprise.

4         CBH, being a trading corporation, is a national system employer and so, since the commencement of the Fair Work Act 2009 (Cth), the State industrial relations system has not had jurisdiction to make awards or agreements in respect of CBH and its employees. The award and the agreement have accordingly been cancelled.

5         Not unexpectedly, since that time the Organisation’s membership has dwindled.  It now has only 20 members.

6         The Organisation applied to the Registrar for cancellation of its registration. As required by s 73(12A) of the Act the Registrar made an application to the Commission in Court Session to cancel the Organisation’s registration, it appearing to the Registrar that there are sufficient grounds for doing so.

7         After hearing from Mr J Carroll of counsel on behalf of the Registrar, and Mr Rankine on behalf of the Organisation, the Commission in Court Session made an order that the registration of the Organisation be and is hereby cancelled on and from 10 December 2024.  These are the Commission in Court Session’s reasons for making that order.

8         Section 73(12) says:

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.

9         Regulation 75 of the Industrial Relations Commission Regulations 2005 (WA) prescribes the manner in which an organisation can request that its registration be cancelled. It says:

(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 the majority of the total number of members of the organisation or association.

10      The Registrar’s application cites two of the three grounds in s 73(12) namely that the number of members of the organisation is less than 200 and that the organisation has requested that its registration be cancelled.

11      Section 73(12) is in mandatory terms. So, where the Commission in Court Session forms the requisite opinion that one or more of the grounds in that subsection are satisfied, the Commission in Court Session is required to cancel the registration of the organisation: The Registrar, Western Australian Industrial Relations Commission v Master Plasterers’ Association of Western Australia Union of Employers [2018] WAIRC 00352; (2018) 98 WAIG 312 at [5].

12      The Registrar’s application complies with the procedural requirements set out in reg 76 of the Regulations in that it is in the approved form, states clearly the grounds on which it is made and has attached to it a statutory declaration by the Registrar setting out the facts on which the Registrar relies. 

13      The application was served on the Organisation and the Registrar has notified the Organisation of the hearing. 

14      The Registrar’s statutory declaration is dated 20 November 2024. It sets out the following facts establishing grounds for cancelling the organisation’s registration:

a. Annual financial returns and officers and membership returns have consistently been filed by the Organisation under the Act and Regulations.

b. The Organisation’s most recently submitted Officers and Membership Return of January 2024 reported it had 20 members as at 1 January 2024.  This was a small decrease from the number of members as at 1 January 2023 when there were 25 members, and as at 1 January 2022 when there were 29 members.

c. On 6 November 2024 the Organisation made a request, in the approved form, to cancel its registration.

d. The Organisation’s request included a statutory declaration confirming that at the time of the declaration it had 20 financial members.

e. The Organisation’s request also included a statement of grounds which showed that the Organisation had conducted a special general meeting which achieved quorum and at which it was unanimously resolved to dissolve the Organisation.

15      The Registrar’s statutory declaration annexed a copy of the Organisation’s rules from which it can be seen that the Organisation’s resolution to dissolve made at the special general meeting was made in compliance with its rules.

16      Relevantly, the Organisation’s rules include rule 24 headed ‘Dissolution’ which says:

This Union shall not be dissolved while there are fifteen or more financial members in favour of carrying on the Union. No vote shall be taken for the dissolution of the Union while a case is before the Court in which the Union is directly interested.

17      It is apparent from the statutory declaration attached to the Organisation’s request to the Registrar that there were not 15 or more financial members in favour of carrying on the Organisation. Indeed no member moved for the continuation of the Organisation’s registration nor did any member oppose the resolution for dissolution. Sixteen members, being the majority, voted in favour of dissolution.

18      The Organisation’s Secretary informed the Registrar that there was no case before a court in which the Organisation is directly interested. 

19      Accordingly, the Commission in Court Session is satisfied that the number of members of the Organisation, being 20 members, is such that the Organisation would not be entitled to registration under s 53. Section 53 enables Organisations consisting of not less than 200 employees associated for the purpose of protecting or furthering interests of employees to be registered.

20      The Commission in Court Session is also satisfied that the Organisation has requested that its registration be cancelled in the manner prescribed by the Act and Regulations. 

21      It follows that the Commission in Court Session must make orders cancelling the Organisation’s registration.