Industrial Court of New South Wales CITATION: Motor Traders' Association of New South Wales [2006] NSWIRComm 345 PARTIES: APPLICANT Motor Traders Association of New South Wales FILE NUMBER(S): IRC 2993 of 2006 CORAM: Walton J Vice-President; Boland J; Staff J CATCHWORDS: Registered organisation - Application by registered organisation for cancellation of its registration - Organisation of same name registered under Workplace Relations Act 1996 (Cth) - Federal organisation seeking registration under Industrial Relations Act 1996 - Grounds for application made out - Application granted Industrial Relations Act 1991 LEGISLATION CITED: Industrial Relations Act 1996 Workplace Relations Act 1996 (Cth) HEARING DATES: 30/10/2006 DATE OF JUDGMENT: 11/03/2006 APPLICANT LEGAL REPRESENTATIVES: Solicitor: Mr R Pegg Toomey Pegg Drevikovsky JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: Walton J, Vice-President Boland J Staff J 3 November 2006 Matter No IRC 2993 of 2006 Re Application by Motor Traders' Association of New South Wales to cancel registration Application to cancel registration as an Industrial Organisation under s 225(3) of the Industrial Relations Act 1996 JUDGMENT OF THE COURT [2006] NSWIRComm 345 1 This is an application by the Motor Traders' Association of New South Wales pursuant to s 225(3) of the Industrial Relations Act 1996 to cancel its registration as an industrial organisation of employers. The ground relied upon for the application is s 226(f) of the Act, namely: (f) that the organisation has applied for the cancellation of its own registration 2 As the applicant noted, it has had a long history of industrial representation of motor industry interests extending back to its original registration as a Union of Employers on 1 February 1918. Circumstances have now changed for the applicant. A separate organisation also known as the Motor Traders' Association of New South Wales is registered in accordance with the provisions of the Workplace Relations Act 1996 (Cth) ("the Federal Association"). The applicant and the Federal Association share the same objects, and have similar powers, eligibility criteria and internal management structure, pursuant to their respective Rules. All members of the applicant are also members of the Federal Association. 3 At a Special General Meeting held on 13 December 2005, the following resolutions were approved by the members of the applicant: (a) The State Association, subject to receipt of advice from the NSW Industrial Registrar that an application by the federally registered organisation known as the Motor Traders' Association of New South Wales ("the Federal Association") for registration as an organisation under the NSW Industrial Relations Act 1996 ("the Act") will be approved, will make an application to the Industrial Commission of New South Wales to seek cancellation of its registration under the Act; and (b) The State Association, subject to the Federal Association being registered as an organisation under the Act, will be dissolved on and from the date on which the Federal Association is so registered; and (c) In the event that the State Association is dissolved, any surplus income and real and personal property of the State Association shall be given or transferred to the Federal Association, an Association having object similar to objects of the State Association registered under the Act. 4 Rule 46(3) of the applicant's rules provides for the distribution of income and property to a body with similar objects following dissolution. 5 On 21 April 2006, The Federal Association filed an application with this Commission seeking registration as an organisation pursuant to s 217 of the Act. The Industrial Registrar has advised the Federal Association that its application for registration has received in principle approval subject to, inter alia, the order sought by the applicant in these proceedings being granted. 6 The Federal Association had also resolved in March 2005 to indemnify the applicant's officers and members against any claims arising out of the business or actions of the applicant and assume liability for any just debts. 7 In an affidavit of Mr Greg Hatton, Director Employment Relations Services for the applicant filed on 13 September 2006 Mr Hatton deposed to the publication of a notice in the Sydney Morning Herald on 28 August 2006 that this application had been made and of the absence of any relevant enquiries following that publication. 8 When the application initially came before the Full Bench on 18 September 2006 the Full Bench raised with the applicant's legal representative a report by the Deputy Industrial Registrar to the effect that no record could be found of any application in relation to the election of office holders of the organisation since 1994 and that accounts lodged with the Registry since confirmation of the registration of the applicant under the Industrial Relations Act 1991 had been lodged under a cover of a certificate given in relation to compliance with State industrial legislation, whereas the attached financial statements had been drawn up with reference to federal industrial legislation. The Full Bench queried whether this raised an issue about the provenance of the application in these proceedings. An adjournment was granted to the applicant's legal representative to seek instructions. The matter was listed before Boland J on 30 October 2006 to hear submissions and provide a report to the Full Bench. We indicated to the applicant we would then deal with the application on the papers in Chambers. 9 On 27 October 2006 a further affidavit of Mr Hatton was filed that deposed to a number of matters concerning the filing of returns, the conduct of elections and variation of rules by the applicant in recent times. Mr Hatton deposed that since 1995 and until 2005 the applicant had incorrectly considered itself to be a federal organisation registered under the Industrial Relations Act. In 1997 the applicant had mistakenly advised the Registrar that it was a federally registered organisation that was also registered as a State organisation under the Industrial Relations Act 1996 in accordance with s 223 of that Act. The applicant had lodged returns with the Industrial Registrar that reflected the financial arrangements of the federal organisation instead of the State organisation. Such returns were filed in relation to all the years ending 31 December between 1996 and 2003. Returns filed in respect of years ending 31 December 2004 and 2005, however, reflected the financial arrangements of the applicant currently registered under the Industrial Relations Act. 10 Mr Hatton further deposed that since 1995 the applicant has conducted regular elections in accordance with its rules and filed returns required pursuant to s 278 of the Industrial Relations Act. Mr Hatton stated that in October 2005 the applicant amended its rules and filed notification of that amendment with the Registrar, who subsequently consented to the amendment. None of the matters referred to in Mr Hatton's affidavit of 27 October 2006 would appear to require a validating order under s 285 of the Act. 11 On 30 October 2006 Boland J heard the submissions of the applicant in support of the application for cancellation of its registration. We have received a report from Boland J regarding those submissions and the evidence in the proceedings. We are satisfied the requirements of the Industrial Relations Act have been met regarding the application and that it is in order to grant the application. 12 We make the following orders: (1) Pursuant to s 225(3) of the Industrial Relations Act 1996 the registration of the Motor Traders' Association of New South Wales as an industrial organisation is cancelled. (2) Order (1) hereof shall take effect on and from seven days after the date of this judgment. __________________________________ 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.