Industrial Relations Commission of New South Wales in Court Session CITATION : Electricity Association of New South Wales [2000] NSWIRComm 146 PARTIES : APPLICANT Electricity Association of New South Wales FILE NUMBER: IRC 3042 of 2000 CORAM: Wright J President; Walton J Vice-President; Hungerford J CATCHWORDS : Registered Organisations - Application by registered organisation for cancellation of its registration - Changed circumstances as to organisation's involvement in industrial relations and representation - Application granted Electricity Supply Act 1995 Industrial Arbitration Act 1940 LEGISLATION CITED : Industrial Relations Act 1996 s 225 s 226 s 227 s 228 Local Government Act 1919 Local Government Associations Incorporation Act 1974 HEARING DATES: 08/09/2000 EXTEMPORE JUDGMENT DATE : 08/09/2000 APPLICANT LEGAL REPRESENTATIVES: Mr P Hayward, Solicitor Haywards Solicitors JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Wednesday, 9 August 2000 Matter No IRC 3042 of 2000 ELECTRICITY ASSOCIATION OF NEW SOUTH WALES. Application to cancel registration as an Industrial Organisation under s 225(3) of the Industrial Relations Act 1996. JUDGMENT OF THE COURT (Extempore) 1 These proceedings relate to an application by the Electricity Association of New South Wales (the applicant) for an order cancelling its registration as an industrial organisation pursuant to s 225(3) of the Industrial Relations Act 1996 (the Act). 2 The grounds and reasons in support of the application are in the following terms: 1. Pursuant to section 226(e) of the Industrial Relations Act 1996 (NSW) the Electricity Association of New South Wales is no longer effectively representative of the industrial interests of its employer members. 2. Pursuant to section 226(f) of the Industrial Relations Act 1996 (NSW) the Electricity Association of New South Wales has applied for the cancellation of its own registration. and the following particulars are given as to those grounds: 1. The employers formerly covered by the awards to which the Electricity Association of New South Wales are a party, have since entered into Enterprise Award Agreements. 2. The Electricity Association of New South Wales has requested the cancellation of its registration as an industrial organisation. 3. The Electricity Association of New South Wales has not had any significant involvement in industrial relations activities since 1995. 3 The provision under which the application is brought is in the following terms: 225 Institution of proceedings for cancellation of registration (1) An industrial organisation or, with the leave of the Commission, a person who has a sufficient interest in the matter may apply to the Commission for the cancellation of the registration of an industrial organisation. (2) The Commission may institute proceedings under this Division on its own initiative. (3) An industrial organisation may apply for the cancellation of its own registration. (4) An industrial organisation must be given an opportunity to be heard by the Commission in any proceedings against the organisation under this Division. 4 That provision must, however, be read in the light of ss 226 and 227 of the Act 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. These sections provide: 226 Grounds on which registration may be cancelled The registration of an industrial organisation may be cancelled on any one or more of the following grounds: (a) that the organisation, or a substantial number of its members, has or have contravened the industrial relations legislation, any industrial instrument, or any order of the Commission, (b) that the industrial organisation, or a substantial number of its members, has or have engaged in any industrial action that has had, is having or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or a part of the community, (c) that the organisation or a substantial number of its members, has or have engaged in any industrial action that has had or is having a major and substantial adverse effect on the provision of any public service by the State or an authority of the State contrary to the public interest and without reasonable excuse, (d) that the industrial organisation was registered by mistake, (e) that the industrial organisation is no longer effectively representative of the members who are employees or employers, as the case requires, (f) that the organisation has applied for the cancellation of its own registration, (g) that the organisation is defunct, (h) in the case of a federal organisation—that the rules of the organisation (and any parent body) no longer confer on the organisation a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales. 227 Cancellation of registration of industrial organisation (1) The Commission may cancel the registration of an industrial organisation if the Commission considers that a ground for cancellation has been established. (2) However, the Commission is not to cancel the registration of an industrial organisation on a ground referred to in section 226 (a)–(c) unless the Commission considers that it is appropriate to cancel the registration in the circumstances because of the gravity of the case. 5 As noted earlier, the present application is brought relying on grounds in paragraphs (e) and (f) of s 226 and the requirement and limitation in s 227(2) does not therefore need to be satisfied. This conclusion also serves to illustrate that the application being one brought on the organisation's own motion is not one where the Commission is required to consider any adverse circumstances involving the organisation. 6 The consequences of cancellation of registration are also dealt with in the Act. For example, s 228(3) provides that the organisation (where relevant) ceases to be a body corporate under the Act, although it does not thereby cease to be an unincorporated organisation; 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. 7 It is appropriate therefore to consider, at least in a preliminary way, the consequences of the application presently made upon the financial affairs of the organisation. 8 In support of its application, the applicant has filed an affidavit of its Executive Manager, Mr Michael Gerald Sinclair, sworn on 14 July 2000. Mr Sinclair, in his affidavit, deals in some short detail with the applicant's history. He indicates that the applicant was registered under the Industrial Arbitration Act 1940 on 6 March 1962; prior to its registration the Local Government Association provided industrial relations advice and representation to the electricity distributors who were its members. Those bodies were incorporated as County Councils and regulated by the Local Government Act 1919. 9 He also deposes that after the applicant's registration it provided industrial relations advice and representation to its members. However, on 1 July 1995 the Electricity Supply Act 1995 commenced. That statute amalgamated the 24 County Councils, and the electricity operations of the one Shire Council which was involved in electricity distribution, into six electricity distributors constituted under the Electricity Supply Act as State Owned Corporations. From that time the electricity distributors took responsibility themselves for industrial matters and obtained their own industrial advice and industrial representation independent of the applicant. The applicant had no further involvement in providing industrial relations advice or industrial relations representation. Accordingly, he indicates that as a result of the Association's lack of activity in the relevant area its members resolved at the 1998 Annual General Meeting to deregister as an industrial organisation of employers. 10 Mr Sinclair also gave evidence that, in addition to its registration under the Industrial Arbitration Act and the successor Acts to that statute, the applicant was incorporated pursuant to the Local Government Associations Incorporation Act 1974 in 1974, and that since its incorporation it has conducted its commercial transactions in the furtherance of its members interests in accordance with its constitution under that Act. His affidavit concludes: 14. On the de-registration of the Association as a registered industrial organisation, it will continue as an incorporated entity pursuant to the Local Government Associations Incorporation Act 1974. 15. Accordingly, I am of the view that the de-registration of the Association as an industrial organisation will have no prejudicial effect upon any creditor or other entity with which the Association commenced dealings or affect in any way any entity or person with whom the Association has legal obligations. 16. The Industrial Registrar has in exercising his powers under Chapter 5 of the Industrial Relations Act 1996, recorded the Association as a separate organisation in terms of section 217(1)(c). The Industrial Registrar relied upon the Association's incorporation under the Local Government Associations Incorporation Act to reach that conclusion. A copy of the relevant correspondence from the Industrial Registrar on 10 August 1998 is Annexure D to this affidavit. 11 We are satisfied that in the circumstances of this matter it is appropriate to grant the application. We note in that regard the applicant does not derive its corporate status from the Industrial Relations Act but rather from the Local Government Associations Incorporation Act and that the cancellation of its registration is unlikely to have any impact upon its creditors, or those having financial dealings with it. We consider that the appropriate basis upon which registration should be cancelled is in terms of s 226(f) of the Act although we also note that the ground set out in s 226(e) is also available. 12 We accordingly make the following orders: 1. The registration under the Industrial Relations Act 1996 of the Electricity Association of New South Wales is hereby cancelled. 2. The order cancelling the registration of the Electricity Association of New South Wales shall take effect on 9 August 2000. ____________________ 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.