The Master Plumbers & Mechanical Contractors Association of New South Wales
[2023] FWCD 37
•29 DECEMBER 2023
| [2023] FWCD 37 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
The Master Plumbers & Mechanical Contractors Association of New South Wales
(R2023/124)
| CHRIS ENRIGHT | MELBOURNE, 29 DECEMBER 2023 |
Alteration of other rules of organisation.
On 23 November 2023 The Master Plumbers & Mechanical Contractors Association of New South Wales (the Association) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules.
The Association seeks certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
On the information contained in the notice and declaration, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Rules 2, 3, 4, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 23, 24, 27, 28, 29, 31, 33, 34, 35, 36, 37, 40, 43, 44, 46, 49, 50, 53, 55 and 58.
The particulars also set out the deletion of Rules 10, 27 and 59.
The alterations:
· reduce the number of members on the Association’s committee of management (referred to throughout the rules as the Executive Committee), from a maximum of 13 to a maximum of 9;[1]
· update the Association’s registered address;[2]
· change the:
o Association’s financial year from the period beginning on 1 January each year and ending on 31 December that year, to the period commencing 1 July each year and ending on 30 June in the year after;[3]
o way subscriptions are calculated;[4]
o process to become a member;[5]
o constitution of the Association’s Finance Committee;[6]
o manner in which the Association’s rules are altered;[7]
o name of the Association’s General Manager to Chief Executive Officer;[8]
· update the Association’s objects;[9]
· set out the powers vested in the Association to achieve its objects;[10]
· tweak the resignation from membership provisions;[11]
· expand the class of persons able to become Associate Members, change the process for becoming an Associate Member and clarify the financial obligations and rights where an Associate Member resigns;[12]
· clarify:
o who is eligible to be elected to office;[13]
o the Life Membership provisions, including a Life Member’s right to vote and hold office;[14]
o the removal from office provisions;[15] and
o the powers of the Chief Executive Officer;[16]
· codify the minimum number of occasions the Association’s committee of management must meet annually and the quorum at those meetings;[17]
· allow persons not present in person—for instance those present by electronic or audiovisual means—to count towards quorums at general meetings;[18]
· insert new definitions for the purposes of the Association’s rules and update existing definitions;[19]
· make consequential changes resulting from changes to the definitions rule;[20]
· introduce gender neutral language;[21]
· update references to:
o applicable legislation;[22]and
o the Commission;[23]
· delete redundant transitional provisions contained in rules;[24]
· make minor grammatical changes;[25]
· delete rules:
o dealing with assignment or cessation of business. Rules such as the one in question are associated with a legislative provision which was repealed some time ago;[26]
o which make provision for matters now dealt with in Part 2A of Chapter 9 of the Act;[27] and
o which entirely contain redundant transitional provisions;[28] and
· consequentially renumber various rules.
The alterations are largely minor and technical in nature. With two exceptions below, they do not require comment beyond expressing and certifying my opinion about the matters set out in s.159(1) of the Act. I do so below.
Change in financial year - date of operation
The Association will be required to meet its obligations under Part 3 of Chapter 8 of the Act for the financial year commencing on 1 January 2023 and ending on 31 December 2023. It will then need to meet its obligations under Part of Chapter 8 for the “financial year” commencing on 1 January 2024 and ending on 30 June 2024.[29] Thereafter the relevant alterations to Rules 3 and 22 will take effect so, from 1 July 2024, the Association will report on a 1 July - 30 June basis.
Change to the composition of the Association’s committee of management (Executive Committee)
Contrary to the Act?
As noted above, the Association’s committee of management currently contains a maximum of 13 persons. Under the proposed alterations, that number will fall to 9.
An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation.[30] This includes the right to change how members are represented within the organisation. A relevant requirement of the legislation is that rules must not impose conditions, obligations or restrictions that, having regard to—among other things—Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust.[31] When considering whether conditions imposed on members are oppressive, unreasonable or unjust, regard must be had to—among other things—the democratic functioning and control of the organisation, member participation in its affairs, its ability to operate effectively, its efficient management and accountability to its members.[32]
On the one hand, reducing the number of persons which comprise the Association’s committee of management may limit opportunities for member participation in the Association’s affairs and by extension potentially lead to the organisation being less representative of its members.
On the other hand, streamlining the committee of management may facilitate efficient management and promote high standards of accountability to the Association’s members.
All office holders in the Association will continue to be elected by and from the Association’s membership.[33] The proposed alteration does not limit the right to run for office or to vote for all candidates for office. At its highest, decreasing the number of persons who make up the committee of management has a somewhat dilatory effect on member participation in the Association’s affairs. In my view the reduction from 13 to 9 is not sufficiently dilatory—in the circumstances—to constitute the imposition of conditions, obligations or restrictions on members contrary to s.142(1)(c) Further in my view, reducing the number of committee of management members from 13 to 9 does not—in the circumstances—lead to the organisation being less representative of its members.
The proposed alterations impose conditions, obligations or restrictions on members of the Association. However, the mere imposition of conditions, obligations or restrictions on members does not render the alterations contrary to s.142(1)(c). They are only contrary to that section of the Act if the conditions, obligations or restrictions imposed on members are oppressive, unreasonable or unjust when the Parliamentary intentions are viewed as a whole. In my view the proposed alterations do not possess the requisite character.
Date of operation
If I certify the proposed alterations, they take effect on the day of certification – see s.159(3) of the Act.
Section 159(3) of the Act was considered by a Full Bench of the Commission in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commission (ROC).[34]
The Full Bench observed:
“Section 159(3) provides that a rules alteration takes effect on the day of certification. However that only means that a rules alteration takes effect according to its terms on that day, not necessarily that it has an operational effect from that day.”
There is a rebuttable presumption that a rule alteration cannot apply retrospectively.[35] In Higgins the Full Court of the former Commonwealth Industrial Court held that there was a “necessary implication” that an existing office continues to hold office until the expiration of their term of office fixed by the rules that were in force at the time of their election.
This presumption can be rebutted, as the Full Court observed in Higgins, “[t]he question must in the ultimate analysis be one of intention.”[36] As Joske J later stated in Beeson:[37]
“In any event, in my view there is a prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters.”[38]
The current members of the committee of management are part way though their terms of office. This is the case for both the Office Holders and other members of the committee of management. Nothing in the alterations to Rule 28 suggests that the changes to the composition of the committee of management are intended to have retrospective effect. In line with principles espoused in Higgins, in my view the current incumbents continue to hold office until their current terms end.
Conclusion
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] See Rule 28.
[2] See Rule 2.
[3] Ibid.
[4] See Rule 18.
[5] See Rule 6.
[6] See Rule 49.
[7] See Rule 55.
[8] See Rules 23, 33, 34 & 37.
[9] See Rule 4.
[10] Ibid.
[11] See Rule 8.
[12] See Rules 12, 13 & 14.
[13] See Ruel 31.
[14] See Rule 16.
[15] See Rule 36.
[16] See Rule 37.
[17] See Rule 33.
[18] See Rule 44.
[19] See Rule 3.
[20] See Rules 7, 11, 23, 24, 27, 34, 36, 40, 44 & 50.
[21] See Rule 34.
[22] See Rule 3.
[23] See Rules 34 & 55.
[24] See Rules 31.
[25] See Rules 9, 15, 28, 29, 31, 34, 35, 36, 40, 43, 46 & 53.
[26] See Rule 10.
[27] See Rule 27.
[28] See Rule 59.
[29] See s.240 of the Act. See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commission (ROC); [2018] FWCFB 16; Hatcher VP, Binet DP, Cambridge C; 3 January 2018.
[30] Imlach v Daley (1985) 7 FCR 457 at 462
[31] Paragraph 142(1)(c) of the Act provides that rules:
...must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust.
[32] Subsection 5(3) of the Act sets out the following standards for registered organisations:
(a)ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b)encourage members to participate in the affairs of organisations to which they belong; and
(c)encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d)provide for the democratic functioning and control of organisations; and
(e)facilitate the registration of a diverse range of employer and employee organisations.
[33] See Rules 28.2, 39.5 & 39.9.
[34] [2018] FWCFB 16 at [24].
[35] Higgins v McGrane (1961) 5 FLR 82.
[36] Ibid., at 85.
[37] Beeson v Blayney (1966) 8 FLR 292.
[38] Ibid., at 294.
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