Master Builders’ Association of Victoria

[2022] FWC 1743

[2022] FWC 1743

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.158(1) RO Act—Rules of organisations

Master Builders’ Association of Victoria

(D2022/3)

DEPUTY PRESIDENT COLMAN MELBOURNE, 6 JULY 2022

Application for consent to alter the eligibility rules of an organisation

1. Master Builders’ Association of Victoria (MBAV) has made an application for the Commission’s consent, pursuant to s 158(1) of the Fair Work (Registered Organisations) Act 2009 (Act), to alter its eligibility rules. MBAV is an association which represents employers and persons who carry on business in the building, construction and housing industry.

1. The application seeks to amend the eligibility rules of MBAV to allow housing sub-contractors access to full rights as members of the association, on the basis that they form an important part of the building and construction industry and there is no reason why they should not be entitled to membership of the association under a proposed new ‘housing sub-contractor sector group’. The application also seeks to make consequential amendments to other rules of the association which pertain to voting rights and classes of membership. I am satisfied that the application relates to rules that directly or indirectly concern eligibility for membership of MBAV. The proposed amendments in this regard affect Rules 6(i)(b)-(e); 6(ii)(b)-(d) and 6(iii) as well as a definition in Rule 5(SS).

1. MBAV has also made an application to vary rules not said to relate to eligibility. That application will be dealt with by the General Manager in accordance with s 159 of the Act (see matter R2022/37).

1. Notice of the application to alter eligibility rules was published in the Commonwealth of Australia Gazette on 12 May 2022. The period for lodgement of objections under Regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (Regulations) expired on 16 June 2022. There were no objections.

1. Section 158 of the Act relevantly 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…”

1. An applicant is also required to comply with Regulation 121, which provides:

“121 Application for consent to change of name or alteration of eligibility rules of an organisation (s 158 (1))

(1)An organisation may apply to the FWC for the consent of the FWC under subsection 158(1) of the Act to:

(a)   change the name of the organisation; or

(b)   alter the eligibility rules of the organisation.

(2)An application under subregulation (1) must:

(a)   be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and

(b)   set out:

(i) if the application is for consent to change the name of the organisation—the proposed name and the reason for the proposal; or 

(ii) if the application is for consent to alter the eligibility rules of the organisation—the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered; and

(c)   contain a declaration:

(i) that the change or alteration was made in accordance with the rules of the organisation; and 

(ii) stating the action taken under those rules to make the change or alteration; and 

(iii) verifying the facts stated in the application; and

(d)   be lodged with the FWC; and

(e)   if the application is for consent to alter the eligibility rules of the organisation—be lodged with a copy of the rules that are proposed to be altered.

(3)If an application under subregulation (1) is not in accordance with this regulation, the General Manager must tell the applicant how the application or statement does not comply with the regulation.

(4)An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).”

1. Based on the materials submitted with the application, including the declaration of Rebecca Casson, Chief Executive Officer of MBAV, I am satisfied that the association has complied with the requirements of the Act and the Regulations.

1. In relation to the requirement in s 158(2) of the Act, I am satisfied that the alteration of the eligibility rules has been made under the rules of the association, on the basis that the association convened a council meeting on 24 February 2022, and that a quorate vote of the council passed the alteration to the rules of the association.

1. I consider that in all the circumstances it is appropriate to consent to the alteration. I consent to the alteration of the eligibility rules of the association. The alteration will take effect from 13 July 2022.

DEPUTY PRESIDENT

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