Re Dairy Distributors Association [2007] NSWIRComm 146

Industrial Court of New South Wales

CITATION: Re Dairy Distributors Association [2007] NSWIRComm 146

PARTIES: APPLICANT Dairy Distributors Association

FILE NUMBER(S): IRC 516 of 2007

CORAM: Walton J Vice-President; Staff J; Backman J

CATCHWORDS: Registered organisation - Application by registered organisation for cancellation of its registration - Original purpose now rendered obsolete - Requirements of Industrial Relations Act met - Application granted.

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 12 June 2007 EXTEMPORE JUDGMENT DATE: 12 June 2007

APPLICANT LEGAL REPRESENTATIVES: Solicitor: Mr A Woods Henry Davis York

JUDGMENT:

- 1 - INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

CORAM: WALTON J, Vice-President STAFF J BACKMAN J

12 June 2007

Matter No IRC 516 of 2007

RE DAIRY DISTRIBUTORS ASSOCIATION

Application to cancel registration as an Industrial Organisation under s 225(3) of the Industrial Relations Act 1996

JUDGMENT OF THE COURT EX TEMPORE [2007] NSWIRComm 146

1 The Diary Distributors Association, an industrial organisation of employers, has made application pursuant to s 225(3) of the Industrial Relations Act 1996 ("the Act") to cancel its registration. The applicant primarily relies upon the ground that the organisation has applied for the cancellation of its own registration. 2 That ground would constitute a proper basis upon which the Commission may exercise its discretion in favour of the application (s 226(f) of the Act). In the alternative, the applicant relies on a ground found in s 226(g) of the Act, namely, that the organisation is defunct. 3 Mr A Woods, solicitor, who appeared for the applicant, relied on an affidavit of Marcus Anthony Watson, an employee of the solicitors for the applicant, who deposed that a notice was placed in the Sydney Morning Herald of Friday 11 May 2007, advising any interested parties of the directions hearing listed before Walton J, Vice-President on 18 May 2007, in respect of this application. Interested parties were directed to make enquiries to the solicitors for the applicant. Mr Woods submitted that the solicitors for the applicant had not received any enquiries from any third party in relation to this application. There was no appearance by any other person in the proceedings. 4 Mr Woods also relied on an affidavit of Robert Gordon Grey, the Executive Director of the applicant, sworn 4 May 2007, who stated that the applicant was registered as an industrial organisation of employers under the Industrial Relations Act 1991 on 9 February 1996. The establishment of the applicant was at the initiative of members of the Amalgamated Milk Vendors Association Inc. ("AMVA"), which was formed in 1932 and incorporated under the Associations Incorporation Act 1984 in 1986. All members of the applicant at the time of the applicant's establishment were nominated by the AMVA. As at 1 March 2007, the applicant had 21 members. Each member is also a member of the AMVA which pays the fees for each member's membership to the applicant. 5 The applicant was initially formed with the intention that it would take over the industrial aspects of the AMVA's role, and ultimately would subsume the AMVA completely. This has not occurred and circumstances have now changed for the applicant. 6 At a Special General Meeting held on 25 November 2006, the following resolution was approved by the members of the applicant: Dissolution of the Association ... That the Dairy Distributors Association be dissolved as soon as practicable in accordance with Rule 42 and that any remaining assets after meeting the costs of dissolution be dealt with in accordance with Rule 42(3). 7 Subsequently, the applicant conducted a secret ballot to endorse the dissolution resolution in accordance with r 42(2) of the applicant's Rules which provides: 42(2) Before such dissolution shall take effect, the motion put at that meeting and the proposals adopted for the distribution of the assets and such motion and proposals shall require the affirmative vote of seventy-five percent of the members of the Association by way of a secret postal ballot. 8 The secret ballot closed at 12.00 noon on 19 March 2007. Mr Grey deposed that he issued a notice to members containing information about the ballot and voting forms and states that a total of 19 of the 21 members of the applicant voted in favour of the dissolution resolution. 9 Rule 42(3) of the applicant's Rules provides that upon dissolution, any assets remaining after full settlement of all debts incurred by the Association shall be distributed to the members of the Association. Although the resolutions of the meetings concerned the dissolution of the Association and not the cancellation of registration per se, we are satisfied that the clear intention of the members of the applicant was that all functions of the applicant should cease, that the applicant should no longer exist and should thereby have its registration cancelled. In this regard, we note that at the Special General Meeting it was agreed that the office bearers be authorised to do all things necessary to implement the decision to dissolve the Dairy Distributors Association. We are prepared to accept that implementing the decision to dissolve the applicant necessarily involves the current application to cancel the applicant's registration under the Act. 10 Mr Woods relied on a second affidavit of Mr Grey sworn on 28 May 2007, to which he annexed the applicant's Balance Sheet as at 30 June 2007, as part of a draft preliminary financial statement. This statement shows that the applicant has total net assets of $5,193. It was submitted that when the costs associated with the dissolution of the applicant were taken into account, it would have a deficit of funds. In respect of this issue, Mr Grey deposed that on 22 May 2007, a meeting of the Executive of the AMVA occurred. At this meeting, the following resolution was passed unanimously by the Executive of the AMVA: In the event that the application of the Dairy Distributor's Association for cancellation of its registration as an industrial organisation of employers under the Industrial Relations Act 1996 is granted, and its registration is cancelled, the Amalgamated Milk Vendors Association will: (a) assume liability for all debts incurred by or on behalf of the Dairy Distributor's Association; and (b) release the Dairy Distributor's Association from all debts owed to the Amalgamated Milk Vendors Association. 11 Rule 34 of the Rules of the AMVA empowers its Executive to pass such a resolution whilst r 21 provides that a simple majority of votes is required for such a resolution to be passed. 12 In addressing the Association's reporting obligations under the Act, Mr Grey deposed that the applicant had inadvertently failed to include a statutory declaration with its Annual Financial Statements in 2004. This matter was rectified in June 2005 when it was brought to the attention of the applicant by the Industrial Registrar. Mr Grey deposed that, to the best of his knowledge, the applicant has complied with its reporting obligations under the Act on all other occasions. 13 Having considered the material filed in support of the application, together with the submissions made by Mr Woods, we are satisfied the requirements of the Industrial Relations Act 1996 have been met regarding the application and that it is in order for us to grant it. Whilst the Association may not be strictly defunct, its original purpose has been rendered obsolete and its members, by properly constituted meetings, have resolved to seek the dissolution of the Association (and we have concluded, its registration). The matter proceeds before us after adequate public notice and with all relevant reporting obligations having been met. There are no assets to be distributed. The liabilities of the Association have been adequately met by the arrangements reached with the AMVA which arrangements have been the subject of an undertaking to the Commission. ORDERS 14 We make the following orders: 1. Pursuant to s 227(1) of the Industrial Relations Act 1996, the registration of the Dairy Distributors Association is cancelled. 2. Order 1 hereof shall take effect on and from seven (7) days after the date of this judgment.