Application by Michael O'Connor for withdrawal from the Construction, Forestry and Maritime Employees Union of the Manufacturing Division

[2024] FWC 2891

[2024] FWC 2891

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

Fair Work (Registered Organisations) Act 2009

s.94(1) RO Act - Application for ballots for withdrawal from amalgamated organisation

Application by Michael O’Connor for withdrawal from the Construction, Forestry and Maritime Employees Union of the Manufacturing Division

(D2024/10)

VICE PRESIDENT GIBIAN SYDNEY, 17 OCTOBER 2024

Application for ballot for withdrawal from amalgamated organisation – Manufacturing Division of the Construction, Forestry and Maritime Employees Union – Subclause 3(1) of Schedule 3 of the Fair Work (Registered Organisations) Act 2009 (Cth).

Introduction

1. Mr Michael O’Connor has applied for a ballot to be held to decide whether the Manufacturing Division of the Construction, Forestry and Maritime Employees Union should withdraw from the Construction, Forestry and Maritime Employees Union (the CFMEU). The application is made pursuant to subclause 3(1) of Schedule 3 to the Fair Work (Registered Organisations) Act 2009 (Cth) (the RO Act).

1. The application and accompanying documents were lodged with the Commission on 9 October 2024 and comprised:

(a)A completed Form 2 – Application for ballot under Part 3 of Chapter 3 as contemplated by Regulation 82(a) of the Fair Work (Registered Organisations) Regulation 2009 (Cth) (the Regulations).

(b)A copy of resolutions of the Divisional Executive of the Manufacturing Division dated 12 and 27 September 2024 which, inter alia, authorised Mr O’Connor to make the application and nominated him as the representative constituent member for the purposed of the ballot.

(c)A written outline of the proposal for the Manufacturing Division to withdraw from the CFMEU.

(d)A copy of the rules proposed for the new organisation to be known as the Timber, Furnishing and Textiles Union.

(e)A copy of the altered rules and name proposed for the CFMEU once the proposed withdrawal of the Manufacturing Division takes effect.

1. The provisions which generally govern the withdrawal of a constituent part of an amalgamated organisation from the organisation are found in Part 3 of Chapter 3 of the RO Act. Those provisions were recently amended by Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (the Closing Loopholes No. 2 Act). Those amendments commenced on 27 February 2024.

1. The Closing Loopholes No. 2 Act also introduced Schedule 3 to the RO Act which is entitled ‘Applications for withdrawal from the CFMEU’. Schedule 3 to the RO Act specifically makes provision for an application to be made to the Commission for a secret ballot to be held to decide whether the Manufacturing Division as described in the rules of the CFMEU should withdraw from the CFMEU.

1. The capacity for such an application to be made is dealt with in clause 3 of Schedule 3 to the RO Act which provides:

3 Application to withdraw from the CFMEU

(1) Notwithstanding any other provision of this Act, an application may be made to the FWC for a secret ballot to be held to decide whether the Manufacturing Division should withdraw from the CFMEU.

(2) Part 3 of Chapter 3 of the old Act, and the old Regulations, apply (subject to this Schedule) in relation to the application and anything done in relation to the application (whether before or after the commencement of this clause).

(3) An application under subclause (1) cannot be made after 31 October 2024.

(4) If an application is made under subclause (1), the application is to be treated (subject to this Schedule) for all purposes as though the application were made pursuant to section 94 of the old Act.

1. Subclause 3(1) of Schedule 3 permits the application to be made. As will be apparent from subclause 3(2) and (4) of Schedule 3, Part 3 of Chapter 3 of the ‘old Act’ and the ‘old Regulations’ apply in relation to such an application. The ‘old Act’ is a reference to the RO Act as in force immediately before the commencement of Part 13 of Schedule 1 to the Closing Loopholes No. 2 Act.[1] The ‘old Regulations’ is a reference to the Regulations as in force immediately before the commencement of the same amendments.[2]

1. The operation of the relevant provisions of the RO Act and the Regulations (as they were before the amendments made by the Closing Loopholes No. 2 Act) in relation to an application concerning the Manufacturing Division of the CFMEU are adjusted in various respects by clauses 4 or 5 of Schedule 3 to the RO Act.[3] The applicable provision for the purposes of determining the application made by Mr O’Connor would appear to be clause 5 of Schedule 3 (when read with Part 3 of Chapter 3 of the RO Act).

1. In considering whether to order a ballot to be held, the Commission may hear from the applicant, the amalgamated organisation being the CFMEU, a creditor of the amalgamated organisation, and any other person who would be affected by the withdrawal of the constituent part from the amalgamated organisation.[4]

Next steps

1. The application is listed for Mention on Thursday, 24 October 2024 at 9.30am. A notice of listing with details with details for attendance will be issued shortly.

1. Interested parties are directed to submit draft directions by no later than 2:00pm on Thursday, 23 October 2024. The applicant and the CFMEU are directed to confer and, if possible, reach agreement in relation to the proposed directions.

Other matters

1. The Commission has established a dedicated Major Cases webpage for this matter called Ballot for withdrawal of Manufacturing Division from CFMEU in order to permit interested persons to have access to relevant materials and monitor the progress of the matter.

1. The Commission’s subscription service will be used to notify interested parties of updates during this matter such as deadlines for the filing of submissions and evidence, notices of listing and when any decisions or statements are issued. Interested parties are encouraged to subscribe to the Ballot for withdrawal of Manufacturing Division from CFMEU list to receive notifications.

VICE PRESIDENT

[1] Fair Work (Registered Organisations) Act 2009 (Cth), Schedule 3 clause 1.

[2] Fair Work (Registered Organisations) Act 2009 (Cth), Schedule 3 clause 1.

[3] Depending on whether the CFMEU and the committee of management of the Manufacturing Division have given the Minister a joint written notice under subclause 2(2) of schedule 3.

[4] Fair Work (Registered Organisations) Act 2009 (Cth), s 100(2).

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