Master Builders Association of South Australia Incorporated

[2013] FWCD 9751

[2013] FWCD 9751

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Master Builders Association of South Australia Incorporated
(R2013/101)
MR ENRIGHT	MELBOURNE, 23 DECEMBER 2013
Alteration of other rules of organisation.

[1] On 18 November 2013 the Master Builders Association of South Australia Incorporated (MBASAI) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Master Builders Association of South Australia Incorporated.

[2] The particulars provide for alterations to rules 3 and 22(5)(n) and the addition of new rules 12A and 22(5)(o) into the rules of the organisation. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations)

Amendment Act 2012 (the Amendment Act) regarding the rules of registered organisations. In

particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation.

[3] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

[4] From 1 January 2014 paragraph 148A(3)(a) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) will mandate that the rules of an organisation must

require the disclosure by each officer of remuneration received from a board or a related party in certain circumstances. Relevantly the rules must require that such disclosures are made as soon as practicable after the remuneration is paid to the officer. New rule 12A(4) of the MBASAI provides that where an officer receives remuneration that is an annual amount paid in instalments, it is sufficient compliance that the officer disclose to the organisation the anticipated annual amount at the start of each financial year, and the actual amount received at the end of the financial year.

[5] On 18 November 2013 the MBASAI provided the Fair Work Commission with a statement that all officers of MBASAI are honorary, that some officers may receive regular income from boards, that all officers are employed in senior capacities within their own business and are subject to considerable work demands, and that it would be onerous for officers to disclose amounts received more regularly. In my view new rule 12A(4) ensures that amounts received by officers are properly identified and accurately reported to members without placing an onerous obligation on officers of the MBASAI.

[2013] FWCD 9751

[6] New rules 12A(5), 12A(7) and 12A(8) of the organisation’s rules require that the Council of the MBASAI disclose to members remuneration paid to officers, officer’s material personal interests and related party payments in the Association’s Annual Report, provided that a copy of the Annual Report is communicated to members within six months of the financial year. These rules largely incorporate the requirements of the Amendment Act. However for the following reasons I do not believe they meet all of the requirements once the amendments become operational on 1 January 2014.

[7] From 1 January 2014 paragraphs 148A(8)(b) and (c), 148B(6)(b) and (c), and 148C(4)(b) and (c) will mandate that rules provides for specified disclosures to be made within six months after the end of the financial year or shorter period, or within such longer period as the General Manger allows in the manner specified on the rules. While the new rules of the MBASAI provide a manner for disclosure when the Annual Report is communicated to members within six months of the financial year, the rules do not provide for a manner of disclosure if the Annual Report is not communicated within six months. The rules need to provide for a manner of disclosure if the Annual Report is not provided to members within six months of the end of the financial year. This omission from the rules will need to be remedied as expeditiously as possible in order to ensure full compliance with the provisions of the Amendment Act.

[8] The Amendment Act[1]provides that alterations to rules of an organisation for the purpose of making provision as required by the Amendment Act can be certified by the General Manager during a transition period which commenced on 29 June 2012. Any alteration to rules that is certified during the transition period, however, does not take effect until the date of certification or the commencement of Part 2 of Schedule 1 to the Amendment Act, whichever occurs later. Part 2 of Schedule 1 to the Amendment Act commences on 1 January 2014.[2]

[2013] FWCD 9751

[1]See Item 38 of Schedule 1 to the Amendment Act.

[2]See Section 2 of the Amendment Act.

[9] In my opinion, the alterations comply with and are not contrary to the RO Act, the Amendment Act, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the RO Act as

modified by item 38 of Schedule 1 to the Amendment Act.

DELEGATE OF THE GENERAL MANAGER

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