Industrial Relations Commission of New South Wales in Court Session CITATION : Australian International Flight Engineers' Association [2002] NSWIRComm 275 PARTIES : APPLICANT: Australian International Flight Engineers' Association FILE NUMBER: IRC 4572 of 2002 CORAM: Wright J President; Boland J; Haylen J CATCHWORDS : Registered organisation - Application by registered organisation for cancellation of its registration - Organisation said to be defunct - Grounds for application made out - Circumstances otherwise appropriate to grant application - Application granted Industrial Relations Act 1988 (Cth) LEGISLATION CITED : Industrial Relations Act 1996 s 153 s 225 s 226 s 227 s 228 s 278 Workplace Relations Act 1996 (Cth) HEARING DATES: 08/27/2002 DATE OF JUDGMENT: 10/18/2002 APPLICANT: Alana Starke LEGAL REPRESENTATIVES: Legal Counsel for AIPA As Agent for the Applicant JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President BOLAND J HAYLEN J Friday 18 October 2002 Matter No IRC 4572 of 2002 AUSTRALIAN INTERNATIONAL FLIGHT ENGINEERS' ASSOCIATION Application under section 225(3) of the Industrial Relations Act 1996 to cancel registration as an Industrial Organisation JUDGMENT OF THE COURT [2002] NSWIRComm 275 1 These proceedings relate to an application by the Australian International Flight Engineers' Association, pursuant to s 225(3) of the Industrial Relations Act 1996, for an order cancelling its registration as an industrial organisation. 2 The grounds and reasons in support of the application are in the following terms: 1. The Australian International Flight Engineers' Association ("the organisation") is the applicant for cancellation of registration. 2. The organisation is defunct. 3. Such other grounds as the Commission in Court Session deems fit. The following particulars are given as to these grounds: 1. The Australian International Flight Engineers' Association has requested the cancellation of its registration as an industrial organisation. 2. The Australian International Flight Engineers' Association entered into a Deed with the Australian and International Pilots Association ("AIPA"), an organisation registered under the Workplace Relations Act 1996 (Cth) on 14 July 1992 ("the Principal Deed"). 3. Under the Principal Deed, AIPA agreed to represent the industrial interests of members of the Australian International Flight Engineers' Association employed as Flight Engineers by Qantas Airways Limited ("Qantas"). 4. The Australian International Flight Engineers' Association has not had any significant involvement in industrial relations activities since the Principal Deed was entered into. 5. Since the Principal Deed was entered into, the AIPA rather than the Australian International Flight Engineers' Association has represented the rights and interests of Flight Engineers. 6. The Flight Engineers employed by Qantas are eligible for membership of the AIPA and, at the present time, are all members of AIPA. 7. The Australian International Flight Engineers' Association does not utilise the services of the Industrial Relations Commission of New South Wales because the relevant federal legislation, the Workplace Relations Act 1996 (Cth), prescribes that matters pertaining to flight crew officers come within the federal jurisdiction. There is no recourse to the New South Wales Commission in respect of those industrial matters. The conditions of employment for all Flight Engineers in the employ of Qantas are governed by a federal award and a federal certified agreement pursuant to the Workplace Relations Act 1996 (Cth). 8. Pursuant to a Deed Poll made on 1 November 2001 by AIPA ("the Deed Poll"), AIPA will continue to be bound by the provisions of the Principal Deed for the benefit of every Flight Engineer employed by Qantas now or in the future. 9. In consequence of the Deed Poll, the Australian International Flight Engineers' Association is, to all intents and purposes, defunct. 3 Section 225(3) of the Industrial Relations Act 1996, the provision under which the application is brought, provides that an industrial organisation may apply, inter alia, to the Commission for the cancellation of its own registration. That provision must be read in the light of ss 226 and 227 which respectively provide the grounds upon which registration may be cancelled and limitations as to the exercise of the power to cancel the registration of an industrial organisation. The relevant parts of these sections are: (a) s 226(f), which provides that one of the grounds upon which the registration of an industrial organisation may be cancelled is where "the organisation has applied for the cancellation of its own registration"; (b) s 226(g), which provides that another ground is where "the organisation is defunct"; and (c) s 227(1), which empowers the Commission to cancel the registration of an industrial organisation if it considers that a specified ground for cancellation has been established. Section 153(2) of the Industrial Relations Act requires that proceedings for cancellation of the registration of an industrial organisation may only be dealt with by a Full Bench of the Commission in Court Session. 4 The consequences of cancellation of registration are also to be found in the Industrial Relation Act. For example, s 228(3) provides that the organisation (where relevant) ceases to be a body corporate under the statute, although it does not thereby cease to be an unincorporated Association; and that the Commission is empowered, on application by a person interested, to make such orders as it considers appropriate as to the satisfaction of the debts and obligations of the organisation out of its property. It is therefore appropriate to consider, at least in a preliminary way, the consequences of the application presently made upon the financial affairs of the organisation. 5 In support of its application, the applicant has filed the following affidavits: (a) Affidavits of Kenneth John Blunden sworn 7 August 2002 and 18 September 2002; (b) Affidavit of Rodney John Cork sworn 7 August 2002; (c) Affidavit of David Sydney Young sworn 16 September 2002; We will return to those affidavits after further reference has been made to the relevant statutory provisions. 6 It is clear that the applicant relies upon each of the grounds set out in paragraphs (f) and (g) of s 226, although a finding by the Court that either ground is substantiated permits the Court to conclude that the application should be granted in the proper exercise of its discretion so to do. The applicant has applied for the cancellation of its own registration and we consider that that ground has been clearly demonstrated. 7 Returning then to the evidence, which requires limited reference only, Mr Cork, the Secretary of the applicant, deposes that it has complied with its obligations in respect of financial accountability under the Industrial Relations Act including the requirement to lodge financial documents with the Industrial Registrar in respect of each financial year from its initial registration up to an including 30 June 2001. Later evidence filed demonstrates that the requisite returns relating to the financial year ending 30 June 2002 have also been filed. Similar evidence is given as to the compliance by the applicant with its obligation under s 278 of the statute relating to the proper keeping of its membership register and provision of its particulars as to office holders, etc. 8 Mr Cork also gives evidence that: 6. To the best of my knowledge and belief, there are no irregularities concerning the organisation's compliance with any requirements under the Industrial Relations Act 1996. 7. No members of the organisation will be disadvantaged as a consequence of cancellation of registration. 8. The organisation has no employees and accordingly there can be no employees who would be disadvantaged as a consequence of cancellation of registration. 9. The organisation has no creditors and accordingly there can be no creditors who would be disadvantaged as a consequence of cancellation of registration. 10. To the best of my knowledge and belief, there are no legal proceedings or claims against the organisation and no legal proceedings or claims pending against the organisation. 9 The first affidavit of Mr Blunden (the President of the applicant) traces the history of its registration which occurred in 1986 under the then relevant statutory scheme. He also refers to the agreement embodied in the Deed with the Australian and International Pilots Association (the AIPA - an organisation registered under the then Industrial Relations Act 1988 (Cth)) on 14 July 1992 (see now the Workplace Relations Act (1996) (Cth)). The terms of that Deed are also the subject of his evidence, which includes the agreement of the AIPA to represent the industrial interests of members of the applicant employed as Flight Engineers by Qantas Airways Limited and to support and use its best endeavours to ensure that the rights and entitlements of such members are preserved and maintained. His evidence permits the conclusion that the terms of the Deed have been observed and that the applicant organisation has not had any significant involvement in industrial relations activities, nor does it use the statutory rights provided under New South Wales legislation. His evidence continues: 10. Pursuant to a Deed Poll made on 1 November 2001 by AIPA ("the Deed Poll"), AIPA will continue to be bound by the provisions of the Principal Deed for the benefit of every Flight Engineer employed by Qantas now or in the future, notwithstanding the cancellation of the registration of the organisation. [The Deed Poll is annexure "B" to the affidavit] 11. Pursuant to the Deed Poll, each Flight Engineer employed by Qantas now or in the future will be entitled to enforce the provisions of the Principal Deed against AIPA as if each such Flight Engineer was a party to the Principal Deed. 12. In consequence of the Deed Poll, the organisation is, to all intents and purposes, defunct and there is no foreseeable benefit to maintaining the organisation's registration. 10 Mr Blunden states in his second affidavit that it is the intention of the applicant's members to dissolve the applicant in accordance with its rules subject to the present application being successful. In that regard, he provides evidence of the conduct of a ballot within the organisation in respect of a detailed explanation of the organisation's proposals concerning this application and the adoption of the relevant proposals by that ballot mechanism. 11 Mr David Sydney Young, the Treasurer of the applicant, gives the following evidence: 2. In my capacity as the Treasurer and in relation to my responsibility to the Committee of Management for ensuring that all monies received by the Secretary on behalf of the Association are deposited without deduction to the organisation's bank account and for the preparation of budgets for presentation to the Committee of Management pursuant to Rule 25 of the organisation's Rules, this Affidavit is provided in support of the organisation's application under section 225(3) of the Industrial Relations Act 1996 (NSW) for an order to cancel its registration as an industrial organisation. … 4. To the best of my knowledge and belief, there are no irregularities concerning the organisation's compliance with any requirements under the Industrial Relations Act 1996. 5. To the best of my knowledge and belief, there are no legal proceedings or claims against the organisation and no legal proceedings or claims pending against the organisation. 12 We are satisfied that, in the circumstances of this matter and having regard to the evidence filed, it is appropriate to grant the application. It is clear that each of the grounds relied upon have been satisfied. That is, the application could have been granted on the basis of either one of the grounds relied on. It may be observed that the registration of the applicant under the New South Wales legislation has had, in the particular circumstances of the limited scope of its membership, limited practical utility; also that, in a practical way, the membership's interests will be represented by an active and experienced organisation registered in the jurisdiction in which the applicant's members' industrial conditions are regulated. 13 We accordingly make the following orders: 1. The registration under the Industrial Relations Act 1996 of the Australian International Flight Engineers' Association is hereby cancelled. 2. The order cancelling the registration of the Australian International Flight Engineers' Association shall take effect on and from today's date. ________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.