Industrial Relations Commission New South Wales Medium Neutral Citation: Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch [2013] NSWIRComm 50 Hearing dates: 14 June 2013 Decision date: 14 June 2013 Jurisdiction: Industrial Court of NSW Before: Haylen J, Staff J and Backman J Decision: (1) The registration of the Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch is cancelled pursuant to provisions of s 227 (1) of the Industrial Relations Act 1996. (2) The cancellation of the registration of the Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch shall take effect seven days after the date of this decision. (3) 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 5 of the Act the cancellation of the registration of the Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch effective from the date referred to in order 2. Catchwords: INDUSTRIAL ARBITRAT0N ACT 1996 - s 226(f), s 227(i), s228(3)(a) - application for cancellation of registration as an organisation of employees - alternative arrangements made for industrial coverage in Federal industrial system by a federally registered organisation - rules altered to permit dissolution and transfer of funds - public notice given of application - no opposition to application - ground for cancellation of regulation established - application granted Legislation Cited: Industrial Arbitration Act 1996 Industrial Relations Act 1996 Category: Principal judgment Parties: Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch Representation: Mr Keats, Solicitor W G McNally Jones Staff File Number(s): IRC 301 of 2013 Decision under appeal Date of Decision: 2013-06-14 00:00:00 Judgment 1The Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch has made application for cancellation of its registration as an industrial organisation under provisions of the Industrial Relations Act 1996. 2The application filed stated that registration was no longer necessary or convenient due to major changes to industrial representation of its members. The following three grounds, grounds 3, 4 and 5, were then set out in the application. Ground 3: The members of the applicant are now effectively industrially represented by the AWU Tobacco Workers' Branch of the Australian Workers' Union. 4: At a special general meeting of the applicant convened on 21 May 2010 the members of the applicant voted to support the dissolution of the applicant. And 5: The applicant is not aware of any proceedings being on foot or contemplated either by or against the applicant other than this application. 3In support of the application two affidavits sworn by Mr Norman McBride, the State Secretary/Treasurer of the applicant organisation, have been read. The first affidavit of 24 April 2013 recited that the applicant organisation amended its rules in September 2010 to provide for the funds of the union to be transferred to the Tobacco Workers' Branch of the Australian Workers' Union rather than its members upon dissolution. It also noted that since late March 2006 members of the applicant organisation have been subject to industrial regulation under the Fair Work Act 2009 and, indeed, this morning we have been informed that there is a federal industrial instrument covering the work. The affidavit also spoke of the members of the applicant organisation being represented by the Australian Workers' Union under the provisions of the Fair Work Act. 4The second affidavit sworn on 24 May 2013 annexed the minutes of the meeting of the applicant organisation recording the terms of resolutions passed by a special meeting of members essentially paving the way for dissolving the union at a date to be determined by the state executive and, secondly, making arrangements for the dispersal of the assets upon the organisation being deregistered. We are in no doubt that there is authority for this application and for dealing with the assets that remain. 5The affidavit also spoke of a public notice published in the Sydney Morning Herald in May advertising these proceedings and we were informed today that there was no response to that public notice. Also early in May a notice was placed at the only place of employment of the members of the applicant organisation advising of this application. Again, there appears to have been no response to the circulation of that notice being in similar terms to the notice published in the Sydney Morning Herald. 6The Full Bench also has before it the audited accounts of the organisation. Those documents disclose that there are no current outstanding creditors. Nobody has come forward to indicate a reason why the application should not be granted. 7The legislative scheme that governs this application can be briefly stated. Section 225 (3) of the Industrial Relations Act provides that an industrial organisation may apply for the cancellation of its own registration. Section 226 (f) provides that an organisation that has applied for cancellation of its own registration is a ground upon which registration may be cancelled. Section 227 (1) provides that the Commission may cancel the registration of an industrial organisation if the Commission considers that a ground for cancellation has been established. We also note that a consequence of cancellation under s 228 (3)(a) is that the organisation ceases to be a body corporate under this Act but does not thereby cease to be an unincorporated organisation. 8Having regard to the evidence and the legislative scheme, the Full Bench is satisfied that a ground for cancellation has been established by the organisation, namely the ground provided in s 226 (f). The Full Bench notes the resolutions authorising the dissolution of the organisation and the dispersal of its assets, the arrangements made with the federally registered AWU to exercise industrial coverage over its members for the future as well as, apparently, in the recent past. We note that there are no outstanding obligations, including financial obligations, and that proper notice has been publicly given as well as amongst the members of the applicant organisation. 9In those circumstances, the Full Bench makes the following orders: (1)The registration of the Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch is cancelled pursuant to provisions of s 227 (1) of the Industrial Relations Act. (2)The cancellation of the registration of the Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch shall take effect seven days after the date of this decision. (3)Pursuant to the provisions of s232 of the Industrial Relations Act, the Industrial Registrar shall record in the register kept under Ch 5 Pt 5 of the Act the cancellation of the registration of the Federated Tobacco and Cigarette Workers' Union of Australia, New South Wales Branch effective from the date referred to in order 2. ********** 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: 14 June 2013