Industrial Relations Commission of New South Wales in Court Session CITATION : NSW Farmers' (Industrial) Association. [2004] NSWIRComm 61 PARTIES : NSW Farmers' (Industrial) Association. FILE NUMBER: IRC 6544 of 2003 CORAM: Walton J Vice-President; Boland J; Haylen J CATCHWORDS : Registered Organisations - Industrial Relations Act 1996 s 225(3) - application to cancel registration - closely associated Federally registered organisation seeking registration under s 217 - assets to be transferred to newly registered organisation - substantially same membership and objects of both organisations - dissolution rule complied with - no evidence of outstanding creditors - no objection to cancellation of registration - registration cancelled with effect immediately before registration of federal organisation under s 217 LEGISLATION CITED : Industrial Relations Act (NSW) 1996 s 217 s 153(2) s 225(3) s 226(f) Workplace Relations Act 1996 (C'th) HEARING DATES: 02/10/2004 DATE OF JUDGMENT: 03/25/2004 APPLICANT Mr R Pegg LEGAL REPRESENTATIVES: Solicitor SOLICITORS Toomey Pegg Drevikovsky JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Walton J, Vice-President Boland J Haylen J 25 March 2004 Matter No. IRC 6544 of 2003 NSW Farmers' (Industrial) Association Application to cancel registration as an Industrial Organisation under s 225(3) of the Industrial Relations Act 1996 JUDGMENT OF THE FULL BENCH [2004] NSWIRComm 61 1 The NSW Farmers' (Industrial) Association is an industrial organisation of employers that seeks an order that its registration be cancelled pursuant to the provisions of s 225(3) of the Industrial Relations Act 1996 ("the Act"). The only ground relied upon is that nominated in s 226(f), namely, that the organisation has applied for the cancellation of its own registration. 2 The matter was initially heard by Haylen J. Bearing in mind the terms of s 153(2) of the Act, on completion of the hearing the matter was referred to Wright J, President for allocation to a Full Bench. The matter was duly allocated to the Full Bench as presently constituted. The Members of the Full Bench have had the opportunity of considering the application filed and the affidavit in support of the application sworn by Mr Tomlinson, the Industrial Relations Manager of the applicant, and has had regard to the oral submissions made in support of the application before Haylen J. 3 The records of the Commission indicate that the applicant has had a long history of representation of pastoral interests before the Commission going back to the Industrial Arbitration Act, 1940. At the same time, an association registered under the Workplace Relations Act 1996 (Cth) with the same name as the applicant has also been registered for many years. It appears that all members of the applicant are also members of the Federal Association. Mr Tomlinson is the Industrial Relations Manager of both Associations and he was authorised by the Federal Association to swear the affidavit. In August 2003, the Federal Association filed an application pursuant to s 217 of the Act seeking registration as an organisation. The Deputy Industrial Registrar has advised the Federal Association that its application for registration has received approval in principle subject to, inter alia, the orders sought by the applicant in these proceedings being granted. 4 At a special general meeting held in April 2003, the members of the applicant Association approved of a number of resolutions having the effect of approving the cancellation of its registration if the federally registered organisation was approved for registration under the Act and providing that upon dissolution any surplus income and real and personal property of the applicant be given or transferred to the Federal Association in view of the similar objects of the two organisations. Notice of the special meeting was duly given to all the members of the applicant and was also published in "The Land" newspaper. Minutes of the special general meeting were before the Commission. The resolution was passed unanimously. 5 The rules of the applicant Association require that on dissolution the real and personal property shall be applied, firstly, in payment of all just claims of members and persons entitled to any salary, leave or benefit from the Association; secondly, in payment of all just debts and liabilities of the Association due and owing to persons being members thereof and thirdly, in payment of all the just debts and liabilities of the Association. Any surplus after the payment of the costs of dissolution are not to be paid or distributed amongst the members of the Association but are to be given or transferred to some other Association or institution having objects similar to the objects of the applicant. It is in light of these provisions that, on application of the dissolution rule, the surplus assets of the deregistered Association are to be transferred to the Federal Association. There was evidence that the applicant Association had received no claims in relation to alleged debts. The Commission was assured that, on a consideration of the financial records of the applicant Association, there was no money owing to any body or person. In addition, the Federal Association had resolved to satisfy any just claim arising from the operation of the dissolved Association. 6 The only potential difficulty arose from an application under s 106 of the Act which appeared to have been brought against the applicant Association as respondent. During oral submissions in support of the application, it was accepted that the applicant was, indeed, the same entity that was the respondent in the s 106 proceedings but, on that very day the matter had been listed for conciliation before Marks J, there were good prospects that the matter would be settled. A subsequent affidavit filed on behalf of the applicant curiously deposed that the entity involved in the s 106 proceedings was neither the applicant Association nor the Federal Association but bore a similar name. In any event, a search of the records of the Registry indicates that the s 106 application was settled and the file closed. 7 From all of the material before the Commission, it appears that the sole purpose of the deregistration of the applicant is to bring about representation by a Federally registered body which has, for a number of years, operated in close association with the applicant. The dissolution rule of the applicant has been complied with and there is no evidence of any outstanding debts owed by the Association. The resolution of the Federal Association to honour any such debts should they arise in the future assists the Commission in reaching a decision in this matter. Importantly, no body, person or alleged creditor appeared to oppose the application when it was listed for mention and directions and later listed for hearing. In all the circumstances, it is appropriate that the application be granted. 8 The Commission makes the following orders: 1. Subject to the operation of Order 2, the registration of the NSW Farmers' (Industrial) Association as an industrial organisation under the provisions of the Industrial Relations Act 1996 is cancelled. 2. The cancellation of the NSW Farmers' (Industrial) Association shall be effective immediately prior to the registration under the Industrial Relations Act 1996 of a federally registered organisation, namely, the NSW Farmers' (Industrial) Association. 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.