Re Building Service Contractors Association of Australia, New South Wales Division [2013] NSWIRComm 11

Industrial Relations Commission New South Wales Medium Neutral Citation: Re Building Service Contractors Association of Australia, New South Wales Division [2013] NSWIRComm 11 Hearing dates: 4 December 2012 Decision date: 18 February 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President, Haylen J and Staff J Decision: The applicant is to address matters raised in this judgment within 28 days. Catchwords: Registered Organisations - Application by the Building Service Contractors Association of Australia, New South Wales Division to cancel its registration as an organisation of employers - Failure to provide audited accounts - Unclear how assets and liabilities have been distributed or transferred - Applicant to address Court's concerns within 28 days Legislation Cited: Fair Work (Registered Organisations) Act 2009 (Cth) Industrial Relations Act 1996 Category: Principal judgment Parties: Building Service Contractors Association of Australia, New South Wales Division (Applicant) Representation: Mr G Selig (Applicant) Workplace Advisory Group File Number(s): IRC 1107 of 2012

Judgment 1This is an application by the Building Service Contractors Association of Australia, New South Wales Division ("BSCA") 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 BSCA for its application are that: 1. The Building Services Contractors Association of Australia New South Wales Division is a registered Industrial Organisation of employers in the cleaning industry. 2. Prior to 1 July 2009 the employees by (sic - of) the Association's members in the cleaning industry were covered under the Building Services (State) Award. 3. This Award was under the jurisdiction of the Industrial Relations Commission and the Industrial Relations Act 1996. 4. Following the introduction of the Fair Work Act 2009, the employees of the Association's members were no longer covered by the jurisdiction of the Industrial Relations Commission or the Industrial Relations Act 1996. 5. As a result of point 4 above the Building [Services] Contractors Association of Australia New South Wales Division successfully applied to be registered under the Fair Work Act 2009 (sic) as an Association of Employers. 6. As such the association (sic) has decided to cancel its registration under the Industrial Relations Act. 4The application is supported by an affidavit of Jamie Halfhide who is the Secretary of the applicant. Mr Halfhide deposed in his affidavit that the BSCA had obtained registration under the Fair Work Act 2009 (Cth) (sic - Fair Work (Registered Organisations) Act 2009) and consequently the applicant considered it unnecessary to continue to maintain its registration under the Act. 5By way of background, Mr Halfhide explained that on 2 October 2012, the Executive Director of BSCA, Mrs Barbara Connolly, received correspondence from the Acting Industrial Registrar. That correspondence indicated that the BSCA had been non-compliant with its obligations under the Act. As a result of receiving this correspondence, Mrs Connolly sought to remedy all of the issues raised by the Acting Registrar. Mrs Connolly also sought legal advice about whether or not it was necessary to continue maintaining registration under the Act. 6Upon receiving legal advice a meeting of the Executive Committee was convened on 26 October 2012. At the meeting, Mr Halfhide recalled that there was considerable discussion about going ahead to cancel the NSW registration. He further recalled that all Executive Committee members were broadly in favour of cancelling the registration but the Committee neglected to pass a formal resolution to that effect. 7The application to cancel the registration was filed on 31 October 2012. On 14 November 2012, a memorandum was circulated to all the Association's members advising them of the application. The memorandum also contained an invitation to raise any issues and/or queries arising from the application. Mr Halfhide said that only two members contacted BSCA regarding the matter. Both members sought clarity on the nature of the application, and both members approved the application. 8Mr Halfhide deposed that on 15 November 2012, BSCA placed a notice in the Sydney Morning Herald newspaper notifying any interested parties of the application to cancel registration. On 10 December 2012, a meeting of the Executive Committee was duly convened and a resolution was passed that: (i) Approved the actions of the Association staff in lodging the formal application to cancel NSW registration on 31 October 2012; and (ii) Directed the Association to proceed to complete the legal process of cancelling the NSW registration; and (iii) Authorised and directed Mr Halfhide to make his affidavit and provide any further information and documentation as may be required by the Commission. 9The evidence filed by the applicant did not address the question of the Association's finances and what was to be done with monies upon cancellation. The Court sought further information. On 13 February 2013, an affidavit of Mrs Connolly was filed that sought to address the Court's concern. Annexed to the affidavit was the latest financial report of the Association. The report was in draft form, as the Association's auditors had not yet accepted it. Mrs Connolly further stated in her affidavit: I can also advise that the association's financial affairs shall remain unchanged if our application for cancellation is successful. This is because the association will continue to operate in its current role and format after de-registration were to occur. As previously stated in this affidavit the association is currently, and has been since February 2010 registered as an associations (sic) of employers with the Fair Work Commission (as it is now known). The association is currently compliant and operating under the procedures required by the Fair Work Commission. The Association shall remain compliant with these procedures in order to maintain its registration with the Commission. 10It is apparent that the BSCA no longer needs or desires to be an organisation of employers registered under the Act. The Association has sought and gained registration under the Fair Work (Registered Organisations) Act. Despite the ambiguity of the affidavit it appears that the BSCA has now been subsumed into the federally registered organisation. However, it has not been made clear whether the finances of the BSCA have been transferred to the federal body. 11Furthermore, the Court needs to be satisfied about the state of the Association's finances. That is to say, we require the latest audited financial reports, not merely draft accounts, and information about the state of the Association's finances up to the present time. 12Accordingly, until such time as the BSCA provides this material to the Court and clarifies whether it is the case that its assets and liabilities have been transferred to the federally registered body or have been otherwise disposed of in accordance with its rules, the Court is not prepared to grant the orders sought. The Court also requires evidence that the Industrial Registrar is satisfied the applicant has complied with all of its obligations under the Act. 13The applicant has 28 days from the date of this judgment to address these matters. A failure to do so will result in the application being refused.