Master Builders Association of the Australian Capital Territory
[2021] FWC 2324
•28 APRIL 2021
| [2021] FWC 2324 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations
Master Builders Association of the Australian Capital Territory
(D2020/20)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 28 APRIL 2021 |
Application by MBA consent to alter eligibility rules – no opposition to application – consent to proposed rule alteration.
[1] The Master Builders Association of the ACT (MBA) has applied for consent from the Fair Work Commission (Commission) to alter its eligibility rules in accordance with s 158 of the Fair Work (Registered Organisations) Act 2009 (RO Act).
Proposed amendments to the MBA’s eligibility rules
[2] The MBA wishes to alter its eligibility rules as follows (underlining is used to indicate the proposed amendments and the words in italics contain the reasons for the proposed rule changes):
“5(a) 4(a) The Association shall consist of an unlimited number of persons engaged in the building and construction industry or civil engineering works or any phase thereof including demolition or excavation work and the like, within the membership categories in Rule 5(b).
• The only changes to this section are the paragraph numbers and references.
• This change is to reflect the updated version of the Rules.
• There is no effect to the organisation’s eligibility rules as a result of this amendment.
5(b) The Association shall comprise the following classifications of membership:
5(b)(i) 5(a) Commercial Builder Members – who shall be persons a Person operating as principal contractors a business in the commercial construction sector.
• This change has been made to incorporate a contemporary definition of “Person” (includes individuals, sole-traders, firms, partnerships, associations, corporations, incorporated or unincorporated bodies, trustees, companies or any other body duly registered under the Corporations Act 2001 (Cth) or similar Act of the Commonwealth or any State or Territory, societies, agencies or other organisations or businesses thereof), and to reflect the changing nature of work in the building and construction industry whereby the companies operating in the commercial construction sector may not always be a principal contractor.
• There is no material effect to the organisation’s eligibility as a result of this amendment.
5(b)(ii) 5(b) Civil Contractor Members – who shall be persons a Person operating as principal contractors a business in the civil construction sector.
• This change has been made to incorporate a contemporary definition of “Person” (includes individuals, sole-traders, firms, partnerships, associations, corporations, incorporated or unincorporated bodies, trustees, companies or any other body duly registered under the Corporations Act 2001 (Cth) or similar Act of the Commonwealth or any State or Territory, societies, agencies or other organisations or businesses thereof), and to reflect the changing nature of work in the building and construction industry whereby the companies operating in the civil construction sector may not always be a principal contractor.
• There is no material effect to the organisation’s eligibility as a result of this amendment.
5(b)(iii) 5(c) Residential Builder Members – who shall be persons a Person operating as principal contractors a business in the residential construction sector.
• This change has been made to incorporate a contemporary definition of “Person” (includes individuals, sole-traders, firms, partnerships, associations, corporations, incorporated or unincorporated bodies, trustees, companies or any other body duly registered under the Corporations Act 2001 (Cth) or similar Act of the Commonwealth or any State or Territory, societies, agencies or other organisations or businesses thereof), and to reflect the changing nature of work in the building and construction industry whereby the companies operating in the residential construction sector may not always be a principal contractor.
• There is no material effect to the organisation’s eligibility as a result of this amendment.
5(b)(iv) 5(d) Supplier and Subcontractor Members – who shall be persons a Person operating a business supplying materials or manufactured goods to the building and construction industry, or be members operating a business as contractors, tradesmen, building agents or pieceworkers (provided that these persons are not employees) to any person operating as a head contractor or project manager in the building and construction industry.
• This change has been made to incorporate a contemporary definition of “Person” (includes individuals, sole-traders, firms, partnerships, associations, corporations, incorporated or unincorporated bodies, trustees, companies or any other body duly registered under the Corporations Act 2001 (Cth) or similar Act of the Commonwealth or any State or Territory, societies, agencies or other organisations or businesses thereof), and to update the language used in the Rules.
• There is no material effect to the organisation’s eligibility as a result of this amendment.
5(b)(v) 5(e) Professional Members – who shall be persons a Person operating a business as a professional or trade consultants to the building and construction industry, persons in the legal or finance industry engaged in direct dealings with the building and construction industry or other persons (provided that these persons are not employees) who by virtue of their trade or the skills practiced by them are engaged in advising or consulting to members of the building and construction industry.
• This change has been made to incorporate a contemporary definition of “Person” (includes individuals, sole-traders, firms, partnerships, associations, corporations, incorporated or unincorporated bodies, trustees, companies or any other body duly registered under the Corporations Act 2001 (Cth) or similar Act of the Commonwealth or any State or Territory, societies, agencies or other organisations or businesses thereof), and to update the language used in the Rules.
• The addition of legal to the Rules does not change the eligibility criteria as a legal adviser would have otherwise been included as an eligible Professional Member if they were engaged in advising members of the building and construction industry. The inclusion of “legal” in this Rule is to reflect the types of professional members of the Association.
• There is no material effect to the organisation’s eligibility as a result of this amendment.
5(b)(vi)may (on the recommendation of the Executive Committee but not otherwise) resolve that a life membership shall be conferred on any member to be an individual who has rendered valuable service to the Association. and such Member shall thereupon be declared to have paid all their future subscriptions in advance.
Such life membership shall not affect their liability to pay any sums other than their subscriptions nor shall it affect their liability to pay subscriptions of any firm, partnership or company of which they are a member.
Life Members shall be entitled to all the privileges of membership but shall not be eligible to hold office in the Association or vote on any matter.
• There are no changes to the eligibility criteria for a Life Member. The Rules are clarified so that it is clear that a Life Member is to be an individual (and for example, not a company).
• There is a change in that Life Members will no longer be eligible to vote or hold office in the Association. This change is reflective of the overall change to the structure of the Executive Committee (being five sector representatives and one President).
• The removal of the section “such Member shall thereupon be declared to have paid all their future subscriptions in advance” is immaterial to the Association as Life Members are not required to pay a membership fee.
5(b)(vii) 5(g) Honorary Members who shall be an individual(s) with a view to strengthening the Association by the influence of members who have has retired from the building and construction industry or other appropriate persons position, who may otherwise be ineligible for membership, as invited by the Executive Committee. may invite such persons to accept honorary membership and in the event of acceptance by such invitees, shall elect accordingly.
Honorary Members shall be entitled to all the privileges of membership but shall not be eligible to hold any office in the Association nor vote on any matter.
• There is no material change to the eligibility for an Honorary Member. The changes outlined above reflect contemporary drafting and place emphasis on the fact that an Honorary Member must be an individual.
5(b)(viii) Associate Members – persons who are otherwise ineligible for membership may apply for Associate Membership.
Associate Members shall be entitled to the privileges of membership but shall not be eligible to hold any office in the Association nor vote on any matter.
• This section has been removed in its entirety. The Association does not have any Associate Members that would otherwise not be eligible for membership under another category, such as Life Member, or Subcontractor / Supplier.
5(h) Student Member, who shall be an individual(s) who is enrolled in an apprenticeship or traineeship, or undertaking an approved qualification or university degree, in the building and construction or associated industry. Student Members shall be entitled to all the privileges of membership but shall not be eligible to hold office in the Association nor vote on any matter.
• This is a new category of membership for the Association, which will allow students – being apprentices, trainees, or those enrolled in a university degree or other approved qualification in the building and construction or associated industry, to become a member of the Association.
• This change has been instigated due to an increasing number of apprentices and trainees who wish to be involved in the organisation and require assistance and access to the services that the Association provides.”
Legislative scheme
[3] Section 158 of the RO Act governs a proposed alteration to the eligibility rules of an organisation registered under the RO Act, such as the RTBU. Section 158 provides:
“158 Change of name or alteration of eligibility rules of organisation
(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:
(a) in the case of a change in the name of the organisation – the FWC consents to the change under this section; or
(b) in the case of an alteration of the eligibility rules of the organisation:
(i) the FWC consents to the alteration under this section; or
(ii) the General Manager consents to the alteration under section 158A.
(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.
(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:
(a) this is not the same as the name of another organisation; and
(b) is not so similar to the name of another organisation as to be likely to cause confusion.
(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:
(a) to which those persons could more conveniently belong; and
(b) that would more effectively represent those members.
(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.
(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.
(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:
(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and
(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.
(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.
(9) Where the FWC consents, under subsection (1) to a change or alteration, the change or alteration takes effect on:
(a) where a date is specified in the consent – that date; or
(b) in any other case – the day of the consent.
(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:
(a) determined by the FWC under subsection 163(7); or
(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or
(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.”
Objection to proposed rule change
[4] The only objection lodged in relation to the MBA’s proposed rule change was lodged by the CFMMEU. It objected to proposed rule 5(h) only of the proposed rule change which, if approved, would permit the MBA to have apprentices and trainees joins as student members of the MBA.
[5] At the first directions hearing of this matter the MBA informed the Commission that it did not press its application for consent to the proposed rule change insofar as it concerns proposed rule 5(h). On that basis the CFMMEU confirmed that it does not have any objection to the proposed rule change and does not wish to be heard further in relation to the application.
[6] As to the balance of the to the balance of the application, Ms Berry, on behalf of the MBA, informed the Commission that the MBA is content to rely on the material filed in support of the application and does not wish to submit any further material to the Commission for its consideration. Accordingly, the application, insofar as it is pressed, will be determined on the ‘papers’.
Consideration
[7] On the basis of the material before the Commission I am satisfied that:
(a) the proposed rule alteration has been made under the rules of the MBA;
(b) in relation to persons who would be eligible for membership of the MBA because of the alteration, there is not, in my opinion, another organisation:
(i) to which those persons could more conveniently belong; and
(ii) that would more effectively represent those members
(c) the proposed rule alteration would not contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under the RO Act and the Fair Work Act the industrial interests of a particular class or group of persons;
(d) there is no relevant order under section 133 of the RO Act; and
(e) there is no discretionary reason not to consent to the rule change.
[8] Accordingly, I am satisfied that the requirements of s 158 of the RO Act are met in this case.
Conclusion
[9] In all the circumstances and for the reasons set out above I consent to the MBA’s application to alter its eligibility rules other than proposed rule 5(h).
[10] In accordance with s 158(9) of the RO Act, the Commission’s consent to the MBA’s application insofar as it applies to proposed sub-rules 4(a), 5(a), (b), (c), (d), (e), (f) and (g) of the MBA’s rules will take effect on 5 May 2021.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR728993>
0
0
0