Master Plumbers & Mechanical Contractors Association of New South Wales, The
[2024] FWC 794
•27 MARCH 2024
| [2024] FWC 794 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations
Master Plumbers & Mechanical Contractors Association of New South Wales, The
(D2023/11)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 27 MARCH 2024 |
Application by Master Plumbers & Mechanical Contractors Association of New South Wales for consent to alter eligibility rules – no opposition to application – consent to proposed rule alteration.
The Master Plumbers & Mechanical Contractors Association of New South Wales (Master Plumbers Association) 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 Master Plumbers Association’s eligibility rules
The Master Plumbers Association wishes to alter its eligibility rules as follows (strikethrough and underlining is used to indicate the proposed amendments):
Article I. 5 - ELIGIBILITY FOR FULL VOTING MEMBERSHIP
5.1 The Association shall consist of an unlimited number of persons (not being employees) lawfully engaged in any part of the Plumbing Industry (as defined) and employing any worker in any capacity in that industry, provided that a Member, or a principal of a Member, or a nominee of a Member holds a contractor’s licence pursuant to the Home Building Act (NSW) 1989 and/or the Construction Occupations (Licensing) Act 2004 (ACT) and the holder of the licence is authorised to contract to do or to supervise specialist work within the meaning of the Home Building Act (NSW) 1989 and/or the Construction Occupations (Licensing) Act 2004 (ACT) and Schedule 5 of the Home Building Regulation (NSW) 2004 (or such legislation or regulation as may replace those Acts).
5.2“Plumbing Industry” shall mean the industry in which Plumbing Work (as defined in 5.3).
5.3“Plumbing Work” or “Plumbing Trade” shall mean any one or more of the following activities:
(a) general plumbing;
(b) sanitary plumbing;
(c) domestic and industrial gas fitting;(d)drainage work including work on storm-water, sub-soil, trade waste sewer, but excluding the construction and maintenance of stormwater sewer and other waste mains;
(e) treatment and disposal of nuclear waste;
(f)construction and installation of septic tanks, aerated wastewater and other on-site treatment systems within an individual property;
(g)work on services providing any of water heating (including high temperature hot water), chilled water, steam and condensate compressed air, oil, solar heating, condenser water, medical and industrial gases, vacuum, soap, sterile-water installations and re-circulated water;
(h)general roof work, including roof and wall claddings, gutters, downpipes and flashings;
(i)fire protection work for home, domestic, commercial and industrial properties;
(j)chemical product, commercial, and industrial, pipe and ductwork installations, ventilation and air conditioning installations, laying, altering and/or repair of mains such as water(j)chemical product, commercial, and industrial, pipe and ductwork installations;
(k)sewer, gas and oil reticulation within the boundaries of the property for which the services are being provided
(k) ventilation and air conditioning installations;
(l)installation and servicing of industrial, hospital, commercial and restaurant equipment (other than electrical services)(l)laying, altering and/or repair of mains such as water, sewer, gas and oil reticulation within the boundaries of the property for which the services are being provided;
(m)installation and servicing of industrial, hospital, commercial and restaurant equipment (other than electrical services);
(n)manufacture, installation and repair of tanks for individual domestic, commercial, or industrial properties, not including community storages; and
(o)maintenance hole and pipe rehabilitation.
5.4The work described in 5.3 above may be carried out on site, in workshops not on site, in any type of building structure, on construction and development sites, in mines, ships, barges, oil rigs and platforms and in air space and vehicles on land.
5.5The work described in 5.3 above may also be carried out whether or not any of the following materials are used: base metals, non-ferrous metals, treated and non-treated metal (including pre-painted and plastic coated), metal alloys (including stainless steel and brass), ceramic, plastics of any chemical formula, cement, glass and pitch fibre.
5.6The work described in 5.3 above may or may not utilise the following processes: hard and soft soldering, bonding, welding (by any method), brazing, cementing, cutting, screwing, mechanical jointing, bending, seaming, folding and chemical jointing.
The Master Plumbers Association says that the reason for the proposed rule alteration is to correct typographical errors and clarify the inclusion of a category of eligibility which has always applied but has not been clearly stipulated.
Legislative scheme
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 Master Plumbers Association. 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.
Material before the Commission
On 5 December 2023, the Master Plumbers Association filed its application for consent to its proposed rule alteration, together with a declaration made by Mr Greg McElroy, President of the Master Plumbers Association, on 5 December 2023.
Notice of receipt of the application was published in the Commonwealth of Australia Gazette on 13 February 2024. The period of objections closed on 19 March 2024. No objection has been lodged in relation to the proposed rule change.
Consideration
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 Master Plumbers Association (s 158(2) of the RO Act);
(b) in relation to persons who would be eligible for membership of the Master Plumbers Association because of the alteration, there is not, in my opinion, another organisation to which those persons could more conveniently belong and that would more effectively represent those members (s 158(4) of the RO Act);
(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 (s 158(6) of the RO Act);
(d) there is no relevant order under s 133 of the RO Act (s 158(7) of the RO Act); and
(e) there is no discretionary reason not to consent to the rule change (s 158(8) of the RO Act).
Accordingly, I am satisfied that the requirements of s 158 of the RO Act are met in this case.
Conclusion
In all the circumstances and for the reasons set out above, I exercise my discretion to consent to the Master Plumbers Association’s application to alter its eligibility rules.
In accordance with s 158(9) of the RO Act, the Commission’s consent to the Master Plumbers Association’s application will take effect on 2 April 2024.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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