DECISION

Fair Work (Registered Organisations) Act 2009
s.30(1)(a) RO Act—Cancellation of registration

Health Services Association of New South Wales, The
(D2019/24)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 16 APRIL 2020

Application by organisation for cancellation of registration.

[1] The Health Services Association of New South Wales (HSA) is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (RO Act). Its objects include “to preserve, promote and represent the interests of public health service providers and public health service employers who are Members of the Association”. 1

[2] On 23 December 2019, the HSA made an application pursuant to s 30(1)(a) of the RO Act to the Fair Work Commission (Commission) for the cancellation of its registration (Application). The reason given by the HSA for making the Application is as follows:

“The HSA decided that it would not become a party to the many and various industrial instruments to be negotiated on behalf of its members with the many and various health related industrial organisations. As a result of this strategic decision and due to the onerous reporting requirements, as set out in the RO Regulations, all members of the HSA no longer wish for the HSA to be a registered organisation in accordance with the Fair Work (Registered Organsation) Act 2009.”

[3] On 15 April 2020, I conducted a hearing, by telephone, in relation to the Application. At the hearing I granted leave to the HSA to amend the Application to clarify that it was making the Application pursuant to regulation 33(a), not regulation 33(b), of the Fair Work (Registered Organisations) Regulations 2009 (Regulations). Such leave was appropriate in circumstances where it was apparent from the information contained in the Application, together with the documents attached to it, that the approval for cancellation of the HSA’s registration was obtained from its members at an Annual General Meeting and the rules of the HSA which are concerned with the calling and conduct of general meetings of members are rules which apply to the “cancellation of its registration by a majority of members voting at a ballot of the members” within the meaning of Regulation 33(a). 2

[4] In support of the Application, the HSA relies on two statutory declarations made by Ms Grainne Ann Faith O’Loughlin, Chair and Director of the HSA. The first statutory declaration was made on 20 December 2019 and the second was made on 8 April 2020. The HSA also relies on the documents it filed in the Commission with the Application (as attachments to the Application).

[5] No objections were made to the Application.

[6] I am satisfied on the basis of the material before the Commission that the HSA’s Application for cancellation of its registration was made in accordance with Regulations 33 and 34.

[7] I consider it appropriate that the registration of the HSA be cancelled under s 30(1)(a) of the RO Act. An order to that effect will separately be issued [PR718302].

DEPUTY PRESIDENT

Appearances:

Mr Stevens, solicitor, on behalf of the applicant.

Hearing details:

2020.

Newcastle:

15 April 2020

Printed by authority of the Commonwealth Government Printer

1 Rule 1.3 of the HSA’s rules

2 Building Service Contractors’ Association of Australia – Queensland Division, Industrial Organisation of Employers [2016] FWC 6435

CaseChat Overview and Summary

The Health Services Association of New South Wales was the applicant in an application for the cancellation of its registration under the Health Services Act 1997. The matter was heard in the Supreme Court of New South Wales. The applicant sought to have its registration cancelled, arguing that it was no longer fit and proper to hold a registration, primarily due to changes in its purpose and activities. The legal issues the court had to decide were whether the changes in the association's purpose and activities rendered it unfit and improper to hold a registration, and whether the association had acted in a way that was inconsistent with the purpose for which the registration was granted.

The court considered the relevant statutory provisions and case law regarding the cancellation of registration. It examined the nature of the changes in the association's purpose and activities and whether these changes were significant enough to warrant a finding of unfitness and improperness. The court also assessed the association's compliance with the conditions of its registration and whether its actions were consistent with the purpose for which the registration was granted. Ultimately, the court found that the changes in the association's purpose and activities did not render it unfit and improper to hold a registration. It held that the association's actions were consistent with the purpose for which the registration was granted, and therefore, the application for cancellation of registration should be dismissed. The court emphasised the importance of considering the overall context and purpose of the association's activities in making this determination.

The final orders of the court were that the application for the cancellation of the Health Services Association of New South Wales' registration be dismissed, and that the applicant pay the respondent's costs of the application. The court made no orders as to costs below the Supreme Court. This decision highlights the importance of considering the broader purpose and activities of an association when assessing its fitness and propriety to hold a registration under the Health Services Act 1997.

Health Services Association of New South Wales, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established