Master Builders' Association of Victoria

[2016] FWCD 1428

[2016] FWCD 1428

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Master Builders' Association of Victoria
(R2015/29)
MR ENRIGHT	MELBOURNE, 15 APRIL 2016
Alteration of other rules of organisation.

[1]        On 19 February 2015 the Master Builders' Association of Victoria lodged with the Fair

Work Commission a notice and declaration setting out particulars of alterations to the rules of

the Master Builders' Association of Victoria.

[2]        The particulars set out alterations to rules 5, 7, 8, 9, 10, 11, 12, 15, 16, 17, 19, 23, 24,

25, 26, 27, 28, 29, 30, 31A, 32, 33, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51,

52, 53, 54, 55, 56, Schedule 1 and Schedule 3 and deleted rule 57.

[3]        This application has taken longer to determine than is usually the case. While

examining the alterations officers of the Fair Work Commission’s Regulatory Compliance

Branch (RCB) became aware of a potential issue with the organisation’s rules. Although the

issue did not relate to the alterations themselves, it necessitated a process of enquiry about

whether I could certify the alterations. That involved research and advice about various

provisions of the Fair Work (Registered Organisations) Act 2009 (the Act) and a number the

organisation’s rules. Ultimately, I am satisfied that there is no reason to withhold certification

of the present alterations while the issue is resolved. I note that RCB officers are continuing to

engage with the organisation in relation to the matter.

[4]        The alterations are extensive. Amongst other things they:

 retitle the Executive Director as the Chief Executive Officer;

 clarify the process by which persons apply for membership of the organisation and

the circumstances in which their membership ceases;

 facilitate communication between the organisation and its members by email and

other modern electronic means;

 merge the offices of President and Immediate Past President so in future a person

will be elected to the office of President/Immediate Past President for a four year

term; serving as President for the first two years and Immediate Past President for

the final two years;

[2016] FWCD 1428

 allow for the co-option of a non-voting member to the organisation’s committee of

management;

 specify a quorum for Special General Meetings;

 limit the number of consecutive terms that a person may be elected to a particular

office;

 prospectively increase the number of persons elected to the organisation’s Council;

 prospectively reduce the term of office for Councillors from two to one year;

 clarify the circumstances in which the organisation’s books can be inspected and

how copies it its rules are provided to members;

 remove references to a redundant membership grouping;

 clarify the process by which cheques are signed;

 refine the organisation’s rule altering procedure;

 simplify the organisation’s Code of Ethics and

 remove redundant transitional provisions.

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

made under the rules of the organisation.

[6]        On 22 March 2016 Peter Picking, President gave consent, under subsection 159(2) of

the Fair Work (Registered Organisations) Act 2009, for the Delegate to make various

amendments to the alterations for the purpose of correcting typographical, clerical or formal

errors. Accordingly the following corrections have been made:

 in proposed rule 16(a)(iv) change the expression “Schedule 4” to ‘Schedule 3’;

 in proposed rule 24 renumber existing rules 24(e) and 24(f) as 24(f) and 24(g)

respectively;

 in proposed rule 27 renumber existing rules 27(a)(ii), 27(a)(iii), 27(a)(iv), 27(a)(v),

27(a)(vi), 27(a)(vii), 27(a)(viii) and 27(a)(ix) as 27(a)(iii), 27(a)(iv), 27(a)(v),

27(a)(vi), 27(a)(vii), 27(a)(viii), 27(a)(ix) and 27(a)(x) respectively;

 in proposed rule 32(j) delete the word “Committee” which appears after the

expression “Sector Group”;

 in proposed rule 32(k) delete the word “Committee” which appears after the

expression “Sector Group”;

[2016] FWCD 1428

 in proposed rule 42(c) change the expression “and in his absence by delegate” to ‘or

in his absence or under delegation by’;

 in proposed rule 54(c) change the word “tghe” to ‘the’; and

 in proposed rule 54(e) change the word “mad” to ‘made’.

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

Organisations) Act 2009.

[8]        One matter requires comment. The alterations were lodged 51 days after the expiry of

the period prescribed by Regulation 126(1) of the Fair Work (Registered Organisations)

Regulations 2009. This is a matter which was raised at the time of the lodgement of this

application and is not the first time that the organisation has lodged rule alterations outside the

prescribed timeframe. On a previous occasion, the organisation submitted that it had hitherto

been unaware of Regulation 126(1). I stated:

although the organisation was not previously aware of the requirement, the

organisation now possesses this knowledge. It is incumbent on the organisation to

ensure lodgement of rule alterations to the Commission in a timely manner in the

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future.

[9]        In this instance the delay was said to arise due to a delay in receiving minutes from the

meeting that transacted the alterations, combined with an extremely busy period of work

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during December and the relevant Christmas - New Year break, the official of the

organisation who had carriage of the matter taking extended leave and excessive work

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demands leading up to and including the period to lodge the application.

[10]      Compliance with statutory requirements is essential to the proper functioning of

registered organisations and again I urge the organisation to carefully consider its compliance

performance. It is incumbent on the organisation in the future to ensure lodgement of rule

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alterations to the Commission within the period required by the Regulations.
[2016] FWCD 1428

[11]      An extension of time under Regulation 126(1) is not as of right. I decline to extend

time for lodgement of the alterations in this instance. Nonetheless, in all the circumstances I

am not going to exercise my discretion to refuse to certify the alterations because Regulation

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126 was not complied with. Should future rule alterations be lodged outside the required 35

day period, I will carefully consider refusing to certify them.

DELEGATE OF THE GENERAL MANAGER

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1

[2014] FWCD 3219 at paragraph 7

2

Submission of A. Simonetto; 2 March 2015 at paragraph 11

3

Ibid at paragraph 15

4

[2015] FWCD1078 at paragraph 8

5

Regulation 126(3)