Industrial Relations Commission New South Wales Medium Neutral Citation: The Colliery Officials Association of NSW [2013] NSWIRComm 82 Hearing dates: 13 August 2013; 19 September 2013 Decision date: 19 September 2013 Jurisdiction: Industrial Court of NSW Before: Walton J Vice-President; Staff J; Backman J Decision: (1) The registration of The Colliery Officials Association of NSW is cancelled pursuant to provisions of s 227 (1) of the Industrial Relations Act. (2) The cancellation of the registration of the The Colliery Officials Association of NSW shall take effect seven days after the date of this judgment. (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 Colliery Officials Association of NSW effective from seven days after the date of this judgment. Catchwords: Cancellation of registration of Industrial Union of employees - s 227 Industrial Relations Act 1996 Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: The Colliery Officials Association of NSW (Applicant) Representation: Counsel: Mr R Keller Solicitors: Ian Collins (Applicant) File Number(s): IRC 95 of 2013 JUDGMENT EX TEMPORE 1The applicant, The Colliery Officials Association of NSW ("the COA") has made application for cancellation of its registration as an industrial organisation under the provisions of s 227(1) of the Industrial Relations Act 1996 ("the Act"). 2A notice of motion filed by the COA, stated that "The Applicant has ceased to operate" and "The Applicant has complied with all its obligations and has no outstanding debts or liabilities". 3In support of the application, four affidavits were filed by Mr Gerald Channing, the General Secretary of the applicant and Secretary and Treasurer of the Western District Branch of the applicant. Mr Channing stated he was authorised by the applicant to take all necessary steps to enable to dissolution of the COA and its branches. 4The first affidavit sworn on 23 January 2013, deposed that since the mid 1990s there had been three main unions representing the interests of miners in the mining industry in NSW. They are, the Construction, Forestry, Mining and Energy Union ("the CFMEU"), who primarily represent mine workers, the COA who represent the mining deputies, and the Association of Professional Engineers, Scientists and Managers ("APESMA"), who represent primarily the Colliery Staff Senior Management and technical staff. 5Over recent years and particularly since 2009, Mr Channing stated that it had become apparent that the interests of the COA and APESMA had coincided. APESMA is a much larger organisation that also has Federal Registration and greater resources to represent its members than the COA. It has invited all members of the COA to join APESMA and undertaken to fully protect their interests. 6By 30 January 2012, all members of the COA had joined APESMA as full members of its Colliery Staff Division and the COA ceased accepting fees and contributions on and from that day. 7Mr Channing stated that the COA has ceased to function as an industrial organisation on and from 31 January 2012, except insofar as organising its affairs with a view to dissolution, monitoring and ensuring the transition of its members to APESMA which has resulted in the interests of its members being fully and properly protected by that organisation. 8On 2 November 2012 at the Annual General Meeting of the COA, the Executive resolved to proceed to dissolution of COA and all its branches with a proposed date of 31 December 2012. 9Mr Channing deposed that the applicant has no employees and all financial obligations of the applicant have been met. 10The COA does not have any claims, demands or suits upon it or any outstanding debts or liabilities. 11Mr Channing further stated that the COA had complied with its financial reporting obligations and would prefer to cancel its registration than incur any continuing additional expenses. 12The second affidavit sworn 1 February 2013 annexed a copy of an Audit Report dated 30 June 2012 prepared by The Linkara Group Pty Ltd in relation to the COA. 13In or about November and December 2012, all Districts of the COA paid funds to the COA totalling $210,000. 14The third affidavit sworn 9 August 2013 annexed a copy of the accounts of the COA which indicate that as at 6 April 2013 there was an amount of $311,610 in the COA's bank account. 15Mr Channing stated that it was proposed to make payments of all monies in the account of the COA, after payment of legal and accounting expenses (estimated at $16,500 including GST) including audit expenses now due which were expected to be in the order of $1600 plus GST, to APESMA's Colliery Staff Division Legal Defence Fund. 16The fourth affidavit sworn 12 September 2013 deposed that the COA resolved at its Annual General Meeting on 2 November 2012, that each of its three sub-branches, being the Northern Division, the Western Districts Division and the Illawarra Division, make payment of its remaining monies on a per capita basis to each Division's members as at 30 January 2012, after payment of all outstanding debts. 17Mr Channing stated that the COA transferred to APESMA's Colliery Staff Division Legal Defence Fund the sum of $300,000 on 22 August 2013. 18Mr Channing annexed to his affidavit a list of all registered members of each of the three Divisions of the COA as at 30 January 2012. 19Mr Channing also annexed to his affidavit, copies of bank statements for each of the sub-branches which indicated that in respect of the Northern Division, the balance in its account as at 9 September 2013 was $227,123.38. In respect of the Western Districts Division, as at 6 September 2013, $56,338.42. In respect of the Illawarra Division, as at 10 September 2013, a total of $36,442.95, which was held in two accounts. 20Mr Channing also annexed a copy of a further audit report dated 10 September 2013 prepared by The Linkara Group Pty Ltd in respect of the COA and its Divisions' accounts. 21Mr Canning stated that all districts were now mailing the per capita distribution to their respective members. After payment of all expenses, the COA expected to hold approximately $2000 in its account to cover any further expenses. The Western Districts expects to hold approximately $2500 to cover any further expenses and sundry fees. The Northern and Illawarra Districts will have no additional funds as there is expected to be no further expenses incurred by these Divisions. 22As the Full Bench has earlier observed, it has before it the audited accounts of the COA. Those documents disclose that there are no current outstanding creditors. There was no opposition to the application being granted. 23As we have already observed on 2 November 2012 at the Annual General Meeting of the applicant, the Executive resolved to proceed to the dissolution of the COA and all its branches which has occurred. Arrangements were also made for the disposal of the COA's assets and there are no outstanding debts or liabilities. 24During the proceedings, Mr R Keller of counsel, who appeared for the COA, informed the Court that per capita payments had been made to the respective members of each of the Divisions of the COA, as listed in the annexures to Mr Channing's affidavit of 12 September 2013. Such payments are in accordance with r 24A(iii) and r 24B(iii) of the COA's Rules. Mr Keller further submitted that after final accounts are paid any remaining funds will be distributed on a per capita basis to the members of the Divisions. 25Relevantly, s 227(1) of the Act provides that the Commission may cancel the registration of an industrial organisation if the Commission considers that a ground for cancellation has been established. 26In light of the evidence relied upon by the COA, the Full Bench is satisfied that grounds for cancellation of the registration of the COA have been established. 27The Full Bench is also satisfied that proper notice has been publicly given in respect of this application. 28The COA proposed orders in the form of Exhibit 11 in the proceedings, which included various notations. In substance, we propose to make the proposed orders, but do not repeat the notations which are otherwise reflected in our judgment. Orders 29The Full Bench makes the following orders: (1)The registration of The Colliery Officials Association of NSW is cancelled pursuant to provisions of s 227 (1) of the Industrial Relations Act. (2)The cancellation of the registration of the The Colliery Officials Association of NSW shall take effect seven days after the date of this judgment. (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 Colliery Officials Association of NSW effective 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. Decision last updated: 19 September 2013