Master Builders' Association of Victoria

[2014] FWCD 3219

[2014] FWCD 3219

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Master Builders' Association of Victoria
(R2013/110)
MR ENRIGHT	MELBOURNE, 20 MAY 2014
Alteration of other rules of organisation.

[1] On 7 January 2014 the Master Builders' Association of Victoria (the organisation)

lodged with the Fair Work Commission (the Commission) a notice and declaration setting
out particulars of alterations to the rules of the organisation.

[2] The particulars provided for the insertion of new rule 24A 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 regarding the rules of registered

organisations. In particular, the alterations provided 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] A question arises as to whether the rule alteration process was complied with when transacting the alterations. Rule 54(b) of the organisation states, in part, ‘The Executive Director shall forward the proposals to each member of the Council at least 14 days before the Council meeting at which they will be considered.’ The declaration by Mr Lou Raunik, Deputy President, states that notice, including a copy of the proposed rule changes, was sent to all Councillors on 12 November 2013. The declaration also states that the rule alterations were made at the Council of Management Meeting on 26 November 2013. For the purpose of notice, neither the day sent nor the day of the meeting are counted.i Therefore, it appears one of the rules associated with the organisation’s rule altering procedure has not been strictly complied with. In accordance with the Act, I am required to be satisfied that the alterations have been made under the rules of the organisation.

[4] As discussed in Master Builders’ Construction and Housing Association of the Australian Capital Territory,ii the relevant question to be asked is whether it is intended that

non-compliance would result in invalidity. Drawing from Project Blue Skyiii and the

application of its principles to the rules of an Association in Re: Australian Principles Federation,iv the issue is not whether an instance of non-compliance has occurred (and as an

inevitable consequence the decision to alter the rules is invalidated). The issue is whether an act which does not comply strictly with the rules has no effect. To determine this, regard must be had to the language, scope and object of the relevant provisions.

[2014] FWCD 3219

[5] Applying this reasoning to the facts before me, the object of rule 54(b) of the organisation rules is that new rules must be made at a meeting and that all Councillors must receive proper notice of the meeting with the full particulars of the alterations. In this instance the new rules were made at a meeting that had thirteen days notice of the proposed alterations instead of fourteen. On the basis of the material before me, all Councillors knew the substance of the proposed alterations in advance of the meeting. In my view, the failure to comply strictly with rule 54(b) is procedural and does not invalidate the decision of the Council to alter the rules.

[6] Regulation 126(1) of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations) requires an alteration of the rules of a registered organisation to be lodged within 35 days after the alteration is made or within any additional period that the General Manager may allow. The notification was lodged with the Commission on 7 January 2014, 41 days after the alterations were made by the organisation.

[7] Regulation 126(1) provides me with the discretion to allow any additional period for lodgement of this notification. On 16 April 2013, the organisation lodged an extension of time request, asking that an additional period be allowed. The reason cited for the delay in lodgement was that the organisation was not aware of the Regulation 126(1) requirement to lodge within 35 days after altering the rules. Having considered the reasons for late lodgement, I allow an additional period of seven days. However, I note that 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 future.

[8] On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation. However, I draw to the attention of the organisation that fourteen days notice does not include the date that the notice is issued or the date of the vote. It is incumbent on the organisation to ensure that proper notice of rule alterations is given in the future.

[9] On 2 May 2014, Melanie Fasham, Treasurer, 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 24A(b)(ii), ‘required by sub-rule 24A(d)(i)’ is corrected to ‘required
by sub-rule 24A(b)(i).’

 In proposed rule 24A(d)(iii), ‘the purposes of this sub-rules’ is corrected to ‘the

purposes of this sub-rule.’

[2014] FWCD 3219

[10] 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

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i Re Railway Sleepers Supply Co (1885) 29 Ch D 204

ii [2013] FWCD 3600

iii Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

iv Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP,

Kaufman SDP, Smith C; 26 September 2006; PR973525.