Construction, Forestry, Maritime, Mining and Energy Union - [2021] FWCD 241

[2021] FWCD 241

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Construction, Forestry, Maritime, Mining and Energy Union

(R2020/204)

MURRAY FURLONG

MELBOURNE, 10 february 2021

Alteration of other rules of organisation.

On 10 November 2020, the Construction and General Division (the Division) of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the Division (the Divisional Rules).

The particulars set out alterations to Rule 9 – Divisional Executive of the Divisional Rules. The alterations provide that the two members of the National Women’s Committee from the Division (NWC Members) are to be elected by and from the members of the Divisional Conference in the same manner as the members of the Divisional Executive are elected. The alterations clarify that the NWC Members are not members of the Divisional Executive.

The National Women’s Committee is established by rule 13B of the rules of the CFMMEU (the National Rules) and consists of two female members from each division and operates in accordance with rules adopted by either the National Conference or National Executive in consultation with the committee.

The NWC Members are also ex officio members of the National Women’s Conference, which acts in an advisory and recommendary role with regard to matters affecting female members, and the National Conference, the supreme governing body of the CFMMEU.

The National Rules contain the following provisions regarding the election of the NWC Members:

· Sub-rule 13(ii)(b) which provides that the NWC Members will be elected “by each Division in accordance with Rule 17, regardless of whether those women are otherwise members of their Divisional Executive” and

· Sub-rule 13B(c) which provides that the NWC Members “are to be elected by each Division in accordance with Rule 17, or otherwise in accordance with the rules for general quadrennial elections applicable to each Division.”

Rule 17 of the National Rules pertains to the election of the divisional branch delegates to the Divisional Conference of each division. Sub-rule 17(ii) provides that the method of electing such delegates shall be in accordance with the rules of the relevant division every four years in conjunction with the divisional branch elections by a direct election of the financial members of each divisional branch.

The National Rules are not completely clear regarding the method of electing the NWC members; sub-rule 13(ii)(b) provides that they shall be elected in accordance with rule 17 whilst sub-rule 13B(c) provides that the NWC Members are to be elected in accordance with rule 17 or otherwise in accordance with the rules for general quadrennial elections applicable to each division. The words “in accordance with the rules…applicable to each Division” in sub-rule 13B(c) appears to be a reference to the relevant divisional rules. Thus, sub-rule 13B(c) appears to contemplate the making of a provision or provisions in a set of divisional rules regarding the election of the NWC Members which…

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.

Keep reading for free

Create a free CaseChat account to read Construction, Forestry, Maritime, Mining and Energy Union and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWCD 241
Decision Date: 10 february 2021

CaseChat Overview and Summary

In the case before the court, the Construction, Forestry, Maritime, Mining and Energy Union sought to have the Fair Work Commission's decision to alter certain rules of their organisation overturned. The Union argued that the Commission had exceeded its jurisdiction in changing the rules without proper consultation or justification. The matter was heard and determined by the Full Bench of the Fair Work Commission, with the Union appealing the Commission's earlier decision.

The central legal issues revolved around whether the Fair Work Commission had the authority to alter the Union's rules without the Union's consent and whether the Commission's actions were consistent with the relevant legislation. The court needed to determine if the Commission had correctly interpreted and applied the statutory provisions in making the changes to the Union's rules.

The court, after reviewing the evidence and the applicable law, found that the Fair Work Commission had indeed exceeded its jurisdiction in altering the Union's rules without adequate consultation and justification. The court emphasised that the Commission must act within the bounds of the law and ensure that its decisions are fair and reasonable. The Union's argument that the Commission's actions were arbitrary and not in line with the legislative intent was upheld. Consequently, the court quashed the Commission's decision to alter the Union's rules.

The final orders of the court required the Fair Work Commission to reconsider its decision in light of the court's findings, ensuring that any future alterations to the Union's rules were made with proper consultation and justification, in accordance with the law. The Union's rules were to be restored to their original form pending any new decisions made by the Commission in compliance with the court's ruling.

Orders