Industrial Relations Commission New South Wales Medium Neutral Citation: Re Australian Business Industrial [2012] NSWIRComm 142 Hearing dates: 26 November 2012 Decision date: 26 November 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President, Haylen J and Staff J Decision: (1) The registration of Australian Business Industrial is cancelled pursuant to the provisions of s 227(1) of the Industrial Relations Act 1996; (2) The cancellation of the registration of Australian Business Industrial shall take effect seven days after 26 November 2012. Pursuant to the provisions of s 232 of the Industrial Relations Act 1996 the Industrial Registrar shall record in the register kept under Ch 5, Pt 3, the cancellation of the registration of Australian Business Industrial effective from the date as determined above. (3) The approval of Australian Business Industrial as a State Peak Council is revoked. Catchwords: Registered Organisations - Application by Australian Business Industrial to cancel its registration as an organisation of employers - Registration no longer necessary or convenient - Members of ABI now effectively represented by the NSW Business Chamber Ltd and organisation of same name registered under Fair Work (Registered Organisations) Act 2009 - Orders made cancelling registration and revoking approval as a State Peak Council Legislation Cited: Fair Work (Registered Organisations) Act 2009 (Cth) Industrial Relations Act 1991 Industrial Relations Act 1996 Category: Principal judgment Parties: Australian Business Industrial (Applicant) NSW Business Chamber Limited (Amicus) Representation: Mr P Punch, solicitor (Applicant) Carroll & O'Dea, Lawyers Mr J Corlett, solicitor (Amicus) Truman Hoyle, Lawyers File Number(s): IRC 1077 of 2012 Judgment 1This is an application by Australian Business Industrial ("ABI") for cancellation of its registration as an organisation of employers under s 225(3) and s 226(f) of the Industrial Relations Act 1996 ("the Act"). Section 225(3) provides: (3) An industrial organisation may apply for the cancellation of its own registration. 2Section 226 provides for the grounds upon which registration of an organisation may be cancelled. Section 226(f) provides: The registration of an industrial organisation may be cancelled on any one or more of the following grounds: ... (f) that the organisation has applied for the cancellation of its own registration, ... 3The grounds and reasons relied upon by ABI for its application are that: 1. The registration of Australian Business Industrial (ABI) is no longer necessary or convenient due to major recent changes in relevant circumstances pertaining to the industrial and other representation of the members, both present and future, of ABI. 2. The members of ABI are now effectively represented, both industrially and otherwise, by two organisations with close affiliation to ABI, namely: (i) the New South Wales Business Chamber, an organisation of employers registered under the State IR Act on 29 May 2012; and (ii) Australian Business Industrial, an organisation of employers registered under the Fair Work (Registered Organisations) Act 2009 (Cth) on 19 October 2009. 3. At a Special General Meeting of ABI convened on 9 May 2012 the members of ABI there gathered voted unanimously to support the Application herein made. 4. ABI is not in breach of any of its obligations under the State IR Act, and there are no proceedings on foot or contemplated either by or against ABI (other than this application). 5. ABI is making application for cancellation of its own registration, which is a ground for cancellation of its registration expressly made available under Section 226 of the IR Act (paragraph (f)). 6. No prejudice will be suffered by any member of ABI or any other person if this Application was granted. 4The application is supported by an affidavit of Terence Carl Wetherall, Director, and two affidavits of Colin John Bosworth, Consultant. Mr Wetherall is the President of the Board of NSW Business Chamber Limited. Mr Wetherall deposed that the Business Chamber and ABI affiliated shortly after ABI was formed and that members of the Business Chamber are eligible to be members of ABI. The Business Chamber is an organisation registered under the Act and has been so since 29 May 2012. 5Mr Wetherall stated that since its registration, the Business Chamber had assumed responsibility for any financial obligations incurred by ABI in its proper functioning from 29 May 2012 and until ABI's registration is cancelled. In evidence was a copy of a resolution by the Board of the Business Chamber to the above effect. 6Mr Bosworth is the Secretary/Treasurer of ABI as well as holding that office in Australian Business Industrial ("Federal ABI"), an organisation of employers registered under the Fair Work (Registered Organisations) Act 2009 (Cth). 7Mr Bosworth provided the background to the application including that ABI was originally registered under the Industrial Relations Act 1991 under the name Chamber of Manufactures of New South Wales (Industrial), that there was a change of name on 10 May 1999 to ABI, that there was close association of ABI with the Business Chamber over many years, that the Business Chamber was registered under the Act and that ABI was successful in gaining registration as an organisation of employers under the Fair Work (Registered Organisations) Act. 8Mr Bosworth deposed that: In consequence of the application by the [Business] Chamber for registration as an organisation of employers, the officers of ABI, in their dual capacity as officers of both that organisation and of the Federal ABI, entered discussions with the representatives of the Chamber in connection with the appropriate terms for the continuation of affiliation arrangements between the chamber and federal ABI, in circumstances where ABI would no longer be required if the Chamber obtained registration. ... On 9 May 2012 On 9 May 2012 a Special General Meeting of the members of ABI met and resolved that, on condition that the Chamber firstly obtained registration as an organisation under the State IR Act, the officers were authorised and instructed to apply for the cancellation of the registration of ABI and thereafter to dissolve it.... On 29 May 2012 the Chamber obtained registration as an industrial organisation of employers under the State IR Act. 9Mr Bosworth stated in his affidavit that to the best of his knowledge, the affairs of ABI are now in a state where no member or other person is likely to suffer any prejudice or detriment by its application for cancellation of its registration being granted. Mr Bosworth further stated: To the best of my knowledge, ABI has complied with its obligations under Section 278 of the State IR Act concerning the keeping of proper membership records. ABI has reported its office holders to the Industrial Registrar as required under that Act. ABI has complied with its financial reporting obligations under the State IR Act. It has held annual general meetings each year and subsequently lodged the required audited financial reports with the NSW Industrial Register each financial year since its registration up until and including the report for the year ending 30 June 2011. The audited financial report for ABI for the year ending 30 June 2012 has been prepared.... On 31 May 2012 the books of ABI were closed to new transactions. As at that date ABI had no assets or liabilities.... Any expenses incurred in relation to the provision of industrial or related services to members of ABI subsequent to 30 May 2012 are being met by Federal ABI or the Chamber and the Chamber has agreed to meet the expenses of and any liabilities incurred by ABI arising in connection with its application to cancel its registration. To the best of my knowledge ABI is not in breach of any of its obligations under the State IR Act or any other law, and there are no proceedings on foot or contemplated by or against ABI (apart from the proceedings the subject of this affidavit). 10Mr Bosworth provided to the Court the relevant financial statements as annexures to his affidavits and the Court has had regard to those. 11In his supplementary affidavit Mr Bosworth deposed that ABI held its Annual General Meeting for the financial year ended 30 June 2012 on Wednesday 24 October and he was in attendance. A resolution was passed as follows: That the minutes of the Special General Meeting held on 9 May 2012 be confirmed as a true and correct record, copies having been circulated to members in attendance. 12The minutes referred to in that resolution were in relation to the earlier resolution that on condition that the Business Chamber firstly obtained registration as an organisation under the Act, the officers were authorised and instructed to apply for the cancellation of the registration of ABI and thereafter to dissolve it. 13An Affidavit of Service of Charles Cosgrove was filed by ABI. The affidavit deposed that on 22 October 2012 the application and supporting affidavits were served on the Australian Federation of Employers and Industries at 97-99 Bathurst Street Sydney, on Unions NSW at 4-10 Goulburn Street, Sydney and on the Australian Industry Group at 51 Walker Street, North Sydney. These organisations were subsequently advised of the time and place of hearing of the application. No appearance was entered by any of these organisations, which may have had an interest in the proceedings. 14Mr Corlett, solicitor representing the Business Chamber, indicated his client's support for the application. 15The Court is satisfied that ABI's registration as an organisation of employers under the Act is no longer necessary or convenient. It is apparent that the members of ABI are now effectively represented by the Business Chamber and Federal ABI. 16Accordingly, the grounds of the application have been made out and it is, therefore, appropriate to grant the application. 17We should add that ABI was a State Peak Council pursuant to s 216 of the Act. Section 216(3) provides: (3) The Commission may at any time revoke any such approval for any reason it thinks fit. 18Given that ABI's registration has been cancelled it is appropriate that its approval as a State Peak Council be revoked. Orders 19The Court makes the following orders: (1) The registration of Australian Business Industrial is cancelled pursuant to the provisions of s 227(1) of the Industrial Relations Act 1996; (2) The cancellation of the registration of Australian Business Industrial shall take effect seven days after 26 November 2012. Pursuant to the provisions of s 232 of the Industrial Relations Act 1996 the Industrial Registrar shall record in the register kept under Ch 5, Pt 3, the cancellation of the registration of Australian Business Industrial effective from the date as determined above. (3) The approval of Australian Business Industrial as a State Peak Council is revoked. ********** 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. Decision last updated: 07 December 2012