[2011] FWA 6868

[2011] FWA 6868

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FAIR WORK AUSTRALIA

DECISION

Fair Work (Registered Organisations) Act 2009
s.30(1)(c) RO Act - Cancellation of registration on FWA's Own Motion

Striptease Artists Australia Incorporated
(D2010/5014)

VICE PRESIDENT WATSON

SYDNEY, 7 OCTOBER 2011

Cancellation of registration on Fair Work Australia’s Own Motion - Striptease Artists Australia Incorporated - Fair Work (Registered Organisations) Act 2009 s 30(1)(c)(i).

Introduction

[1] Striptease Artists Australia Incorporated (‘SAA Inc’) was registered as an organisation under Schedule 1 of the Workplace Relations Act 1996 (‘WR Act’) by the Australian Industrial Relations Commission on 26 June 2002.

[2] With effect from 1 July 2009 all provisions of the WR Act, with the exception of Schedules 1 and 10, were repealed and the WR Act was renamed the Fair Work (Registered Organisations) Act 2009 (‘the RO Act’).

Relevant Legislation

[3] Section 30 of the RO Act is entitled ‘Cancellation of Registration on Technical Grounds, Etc.’. Subsection 30(1) provides:

“(1) FWA may cancel the registration of an organisation:

(a) on application by the organisation made under the regulations; or

(b) on application by an organisation or person interested or by the Minister, if FWA has satisfied itself, as prescribed, that the organisation:

(i) was registered by mistake; or

(ii) is no longer effectively representative of the members who are employers or employees, as the case requires; or

(iii) is not free from control by, or improper influence from, a person or body referred to in paragraph 19(1)(b) or 20(1)(b), as the case requires; or

(iv) subject to subsection (6), if the organisation is an enterprise association—the enterprise to which it relates has ceased to exist; or

(i) FWA has satisfied itself, as prescribed, that the organisation is defunct; or

(ii) the organisation is an organisation of employees, other than an enterprise association, and has fewer than 50 members who are employees; or

(iii) the organisation is an enterprise association and has fewer than 20 members who are employees; or

(iv) the organisation is an organisation of employers and the members who are employers have, in the aggregate, throughout the 6 months before the application, not employed on an average taken per month at least 50 employees; or

(v) the organisation is not, or is no longer, a federally registrable association.”

[4] Sub-section 30(2) requires that before FWA cancels the registration of an organisation under either paragraph 30(1)(b) or (c) it must give the organisation an opportunity to be heard in relation to the application or motion.

[5] If FWA elects to commence a deregistration under paragraph 30(1)(c), the Fair Work (Registered Organisations) Regulations 2009 (‘the RO Regulations’) set out the actions with which FWA must comply in order to satisfy itself that an organisation is defunct. Regulation 36 is entitled ‘Cancellation of Registration of Defunct Organisation’ and provides:

“(1) For paragraph 30(1)(c) of the Act, FWA must, with a view to satisfying itself that an organisation is defunct, comply with the following sub regulations.

(2) FWA must make appropriate inquiries by letters sent by post to:

(a) the organisation at its office; and

(b) the members of the committee of management of the organisation as last known to FWA at their postal addresses as last known to FWA.

(3) If, after inquiries made under subregulation (2), FWA fails to satisfy itself whether the organisation is defunct, FWA must publish in the Gazette a notice stating that:

(a) subject to consideration of any objections lodged in accordance with the notice, the registration of the organisation will, at the end of one month after the date of publication of the notice, be cancelled on the ground that the organisation is defunct; and

(b) a person who wishes to show cause why the registration of the organisation should not be cancelled on that ground may, within one month after the date of publication of the notice, lodge with FWA a notice of objection.

(4) A notice of objection must:

(a) be in the form set out in the Procedural Rules or in a form otherwise

approved by the President; and

(b) be lodged with FWA; and

(5) If a person has lodged a notice of objection under paragraph (3) (b), FWA must give the person an opportunity to appear before it and to be heard in support of the objection.”

Consideration

[6] Since 2006 SAA Inc has failed to comply with a number of fundamental requirements set out in the WR Act and subsequently in the RO Act. These include failing to hold elections as prescribed in its rules, failing to lodge annual returns of office holders pursuant to s 233 of the RO Act and failing to lodge financial statements pursuant to s 268 of the RO Act.

[7] Fair Work Australia forwarded a letter dated 18 October 2010 to SAA Inc and separately to each of the last known committee members at their last address recorded with Fair Work Australia which relevantly stated as follows:

“It is noted that numerous correspondence has been forwarded to your organisation since approximately 2007 seeking compliance with the legislative requirements that stipulate registered organisations are to file information pursuant to s233 and Part 3, Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (‘the Act’) with Fair Work Australia (‘FWA’) and its predecessor prior to 1 July 2009, the Australian Industrial Registry pursuant to Schedule 1 of the Workplace Relations Act 1996.

It is also noted that the last election that was granted for your organisation was in July 2005. Although it would appear that an election pursuant to Cl.18.1.1 of your organisation’s rules was due to be held in 2009 your organisation has not provided FWA with any request to arrange an election of office bearers pursuant to s189(1) of the Act.

As there has been no contact from your organisation and no lodgement of the required documentation as set out above, I advise that FWA intends to take action under s30(1)(c)(i) of the Act which provides that FWA may cancel the registration of an organisation if FWA is satisfied that the organisation is defunct.

If your organisation believes that it is inappropriate for FWA to cancel its registration, it can lodge an objection with FWA. I enclose the relevant F61 Notice of Objection to the Cancellation of Registration of an Organisation for your assistance if required.

Should you seek to lodge a Notice of Objection, I would draw your attention to the following regulations of the Fair Work (Registered Organisations) Regulations 2009 which state:

‘14 Content of notices of objections lodged with FWA

A notice of objection lodged with FWA must:

(a) state the name and address of the organisation, association or person lodging the notice of objection (the objector); and

(b) state the grounds of objection; and

(d) briefly state the facts the objector relies on for each ground

of objection.

15 Service of documents

(1) Every document lodged with FWA must be endorsed with:

(a) the name of the party lodging the document; and

(b) an address that may be used as an address for service.

(2) A document lodged by an association, organisation or person with an electronic mailing address may be endorsed with an electronic address for service.

(3) A document may be served electronically on an association, organisation or person with an electronic address for service.

Should you wish to lodge a Notice of Objection to the Cancellation of your organisation’s registration, I request that it be lodged with FWA within one month of the date of this letter. If no objection notice is lodged within this period, this matter will be forwarded to a Tribunal member of FWA to consider the deregistration of your organisation.’”

[8] Neither a Notice of Objection to the Cancellation nor any form of submission has been received in response to the above letters.

[9] Fair Work Australia consequently undertook enquiries with a view to establishing a current telecommunication or electronic contact or physical address for SAA Inc without success.

[10] On 2 March 2011, the General Manager of Fair Work Australia had published in the Commonwealth of Australia Gazette, edition GN8, a Notice in the following terms:

“NOTICE OF INTENTION TO CANCEL REGISTRATION OF AN ORGANISATION

(D2010/5014)

NOTICE is given that FWA intends pursuant to s30(1)(c)(i) of the Fair Work (Registered Organisations) Act 2009 to deregister the registered organisation known as Striptease Artists Australia Incorporated on the ground that the organisation is defunct.

Any interested person who desires to object to the application may do so by lodging with Fair Work Australia, marked to the attention of MaryAnne Guina, a notice of objection, complying with the requirements of regulation 14 of the Fair Work (Registered Organisations) Regulations 2009, no later than one month after the publication of this advertisement

If no objection is received within one month from the date of publication of this advertisement, Fair Work Australia will cancel the registration of the above organisation on the ground that the organisation is defunct.”

[11] Neither a Notice of Objection to the Cancellation nor any form of submission has been received in response to the above Notice.

Conclusion

[12] As a result of the above enquiries, I am of the view that Fair Work Australia has satisfied itself in the manner prescribed that SAA Inc is defunct. Accordingly, pursuant to sub-paragraph 30(1)(c)(i) of the RO Act, I will issue and Order cancelling the registration of SAA Inc.

VICE PRESIDENT WATSON

Printed by authority of the Commonwealth Government Printer