Supreme Court New South Wales Medium Neutral Citation: Restaurant and Catering Industry Association of New South Wales ABN 26214164082 v The Prothonotary of the Supreme Court of New South Wales ABN 50132005544 [2018] NSWSC 258 Hearing dates: 01 March 2018 Date of orders: 01 March 2018 Decision date: 01 March 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) The registration as an industrial organisation of employers of the Restaurant and Catering Industry Association of New South Wales is hereby cancelled. (2) No order for costs. Catchwords: INDUSTRIAL LAW – cancellation of registration of industrial organisation of employers – organisation defunct – effect of industrial activity being overtaken by federal legislation – no activity since 2013 – application by organisation – application granted Legislation Cited: Industrial Relations Act 1996 Fair Work Act 2009 (Cth) Category: Principal judgment Parties: Restaurant and Catering Industry Association of New South Wales (Plaintiff) The Prothonotary of the Supreme Court of New South Wales (Defendant) Representation: Solicitors: Restaurant & Catering Industry Association (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2018/00039491 EX TEMPORE Judgment 1. HIS HONOUR: Before the Court is an application by the Restaurant and Catering Industry Association of New South Wales, ABN 26214164082 ("the Association") for cancellation of its registration as an industrial organisation pursuant to the terms of Industrial Relations Act 1996 ("the Act"), as amended. 2. As a result of the alteration in the environment of industrial relations, which has seen industrial activity, except in the area of State government and its agencies, entirely overtaken by federal legislation and activities under the Commonwealth Act, the Association and its members have now put themselves in a situation where it is the federal organisation, registered under the Fair Work Act 2009 (Cth), that is undertaking all of the activities on behalf of the membership, or former membership, of the applicant State Association. 3. The evidence before the Court, which includes the affidavit of Marianne Wells affirmed 23 February 2018, makes clear that there has been no activity of the state-registered Association since at least 4 June 2013, and that activity on 4 June 2013 was an application for an amendment to the rules of the state-registered Association. 4. There are aspects of the State Association's Rules which require comment. Rule 48 of the State Rules provide that the Association will not be dissolved except at a general meeting of the Association specially convened for that purpose. 5. Nevertheless the Act, and, in particular, s 225, legislatively prescribes that the Association may apply for the cancellation of its own registration. 6. A question arises as to whether the cancellation of the registration and the consequential cessation of its corporate status would dissolve the Association. It may well be that the Association is required to hold a special meeting in accordance with Rule 48. Ultimately that is not a matter that the Court needs to consider further. 7. The Court finds on the basis of the affidavit material before the Court, and on the basis of the submissions from the Bar table, that the applicant Association, being an industrial organisation, is no longer effectively representative of the members who are employers and for whom it has eligibility. The Court also makes clear that the Association has applied for the cancellation of its own registration. I would draw the inference that the Association, as a state-registered organisation, is now defunct. As a consequence, the Court is satisfied of the grounds in paras E, F, and G of s 226 of the Industrial Relations Act 1996. 8. I am satisfied that the application for cancellation of registration is in order. And as a consequence, pursuant to the powers and jurisdiction conferred on the Court by the provisions of s 227(1), the Court makes the following order: 1. The registration as an industrial organisation of employers of the Restaurant and Catering Industry Association of New South Wales is hereby cancelled. 2. No order for costs. ********** 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: 05 March 2018