Master Builders' Association of Tasmania Inc.

[2020] FWCD 4754

[2020] FWCD 4754

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Master Builders' Association of Tasmania Inc.
(R2020/140)
MURRAY FURLONG	MELBOURNE, 8 SEPTEMBER 2020
Alteration of other rules of organisation.

[1]        On 4 September 2020, the Master Builders' Association of Tasmania Inc. (the MBAT)

lodged with the Fair Work Commission a notice and declaration setting out particulars of

alterations to the rules of the MBAT.

[2]        The particulars set out the insertion of a new clause 49, the effect of which is to

extend the current term of office of all offices by one year for a total term of three years. It

further provides that the term of persons currently holding offices within the MBAT will

continue until their successors assume office. The clause will cease to have effect upon the

assumption of office of persons elected after the next scheduled elections held following its

certification.

[3]        I understand that the alteration has been necessitated by the delay in the Australian

Electoral Commission conducting elections for offices within the MBAT which would

otherwise have occurred earlier this year as a result of the impact of the COVID-19 pandemic

on its operations. In this regard, I note that the MBAT lodged the prescribed information in

relation to the election of those offices with the Registered Organisations Commission (ROC)

on 3 March 2020 and the ROC arranged for the conduct of that election on 1 May 2020 in

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accordance with s. 189 of the Fair Work (Registered Organisations) Act 2009.

[4]        I recently considered the relevant principles associated with an alteration to the rules

of an organisation which has the effect of extending current terms of office in The Australian

Industry Group [2020] FWCD 3662. As with the alteration in that matter, I am satisfied that

the terms of new clause 49 preclude any potential presumption that its effect does not apply to

the current terms of offices within the MBAT.

[5]        I further note that there is a level of uncertainty regarding whether the current terms of

office of the members of State Council necessarily continue until their successors assume

office under the existing rules of the MBAT. The State Council consists of the Regional

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Chairpersons and Regional Representatives to State Council amongst others. These offices

are elected in a collegiate election by and from the members of the Regional Management

Committee who have previously been elected directly by the membership of the relevant

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Region.
[2020] FWCD 4754

[6]        By-Law 7(b) of Schedule II provides that the Regional Chairpersons and Regional

Representatives to State Council “may only hold that position continuously for a maximum

period of one term (i.e. two years) or until their term as Regional Management Committee

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Member expires, whichever is the shorter, however [they] shall be eligible for re-election”.

[7]        This raises an issue regarding whether the doctrine of “holding over” applies to the

terms of those offices. The effect of that doctrine is that, in the absence of a clear provision to

the contrary, the terms of officers of organisations are held over until their removal,

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resignation or the assumption of office of their successors.

[8]        I will not make any definitive conclusions in this regard other than to note that this

issue presents a significant level of ambiguity in terms of continuity if the elections for the

offices of Regional Management Committee Member fail to occur in an election year.

[9]        This uncertainty is exacerbated by the stipulation in the existing rules that the Office-

bearers of the MBAT “hold office until the expiration of their current term as State

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Councillor”.

[10]      Finally, I have considered the scheme of the elections within the MBAT under its rules

which stipulate that the results of elections for particular offices are to be declared, or

successful candidates assume office, during general meetings of a Region or the Annual

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General Meeting of the MBAT. This obviously presents significant challenges in terms of

ensuring the health and safety of members and complying with public health regulations.

[11]      For the above reasons, I am satisfied that the alteration in the present matter is a

reasonable and prudent measure to ensure the continuity of the MBAT’s officers and permit a

viable election process to occur at a later time.

[12]      On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[13]      In my opinion, the alterations comply with and are not contrary to the Fair Work

(Registered Organisations) Act 2009, 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 Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

[2020] FWCD 4754

Endnotes:

1

Master Builders’ Association of Tasmania Inc. [2020] ROCD 78. Accessible at

2

Clause 13.

3

Schedule II, By-Laws 5 & 7.

4

See also clause 13(c)(vi).

5

McLure v Mitchell (1974) 24 FLR 115, 126 Joske J

6

Clause 15(v).

7

For example, see clauses 13(c)(vi), 15(ii) and Schedule II, By-Law 5.

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