DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Application by Construction, Forestry, Maritime, Mining and Energy Union
(B2020/834)

DEPUTY PRESIDENT ASBURY

BRISBANE, 2 JULY 2021

Application for bargaining order – Whether CFMMEU is entitled to represent the industrial interests of employee – Construction of union rules – Principal or primary purpose test – Whether employee principally or primarily employed as forklift driver or warehouse operator – Finding that employee is principally or primarily employed as warehouse operator – Employee not principally or primarily employed to drive a forklift – CFMMEU is not entitled to represent industrial interests of employee – CFMMEU has no standing to bring application for bargaining order based on membership of employee.

Overview

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (the Commission) for a bargaining order. The application has been brought under s.229 of the Fair Work Act 2009 (the FW Act). The application relates to bargaining being conducted by DuluxGroup (Australia) Pty Ltd (Dulux) for a proposed enterprise agreement to cover employees at the Rocklea Site at which Dulux operates a paint manufacturing facility and distribution centre.

[2] The proposed agreement is to replace the Dulux Rocklea Enterprise Agreement 2016 (2016 Agreement) which applies to employees at the Rocklea Site. Dulux and the United Workers Union (UWU) are also covered by the 2016 Agreement. The 2016 Agreement reached its nominal expiry date on 3 March 2020 and bargaining for the proposed agreement commenced on 18 November 2019. The 2016 Agreement covers employees in a range of classification levels undertaking tasks associated with the manufacturing and distribution of paint. Dulux generically refers to these employees as Production Operators and Warehouse Operators.

[3] In summary, the CFMMEU has enrolled some employees covered by the 2016 Agreement as members and contends that it is entitled to represent the industrial interests of those members in negotiations for the proposed agreement. The CFMMEU seeks orders requiring that Dulux:

• Recognise and bargain with the CFMMEU in accordance with s. 228(1)(f) of the FW Act; and

• Attend and participate in meetings with the CFMMEU at reasonable times in accordance with s. 228(1)(a) of the FW Act.

[4] Dulux contends that the CFMMEU is not entitled to represent the industrial interests of Warehouse Operators or Production Operators at the Rocklea Site and that on this basis, the CFMMEU does not have standing to make an application for a bargaining order under s.229 of the Act. The parties agreed that the question of the CFMMEU’s standing to make the application would be dealt with as a preliminary matter.

[5] The matter was heard over several days in March 2021. The CFMMEU and Dulux sought and were granted permission to be represented by lawyers. Permission was granted pursuant to s.596(2)(a) of the Act on the basis that I was satisfied that the matter involves significant complexity involving, as it does, construction of union rules…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 3786
Decision Date: 2 JULY 2021

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application for a bargaining order in the Fair Work Commission. The dispute involved whether the CFMMEU was entitled to represent the industrial interests of an employee. The central issue was the construction of the union's rules and the applicability of the principal or primary purpose test in determining the employee's primary role. Specifically, the court needed to ascertain whether the employee was principally or primarily employed as a forklift driver or a warehouse operator.

The court's task was to interpret the union's rules and apply the principal or primary purpose test to the facts of the case. The test required determining the primary role of the employee to decide which union had the right to represent the employee's industrial interests. The court found that the employee was principally or primarily employed as a warehouse operator, not as a forklift driver. This finding was critical as it determined the applicability of the union rules and the CFMMEU's entitlement to represent the employee.

Following the court's reasoning, it was concluded that the CFMMEU was not entitled to represent the industrial interests of the employee because the employee was not principally or primarily employed to drive a forklift. Consequently, the CFMMEU had no standing to bring the application for a bargaining order based on the membership of the employee. The court dismissed the application on the basis that the CFMMEU lacked the necessary standing to proceed with the application.

Orders