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.

1. 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).

1. 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.

1. 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.

1. 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.

1. 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.”

1. 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.

1. 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 may differ to the provisions of rule 17 in a material way.

1. Sub-rules 13(ii)(b) and 13B(c) are not directly inconsistent with each other regarding the election of the NWC Members as the former does not necessarily preclude the alternative arrangements contemplated by the latter.

1. Rule 13B specifically establishes the National Women’s Committee and the positions of NWC Member. Rule 13 concerns the overall composition and powers of the National Conference. Given this, it appears that sub-rule 13B(c) should be considered the most apposite rule with respect to the method of electing the NWC Members and the provision to be followed in this regard.

1. Sub-rule 13B(c) also appears to be broadly consistent with the interaction of the National Rules and the Divisional Rules more generally. Rule 27 of the National Rules provides that each division shall have autonomy to decide matters which do not directly affect the members of another division, including the election of officers within a division, and the power to adopt rules applicable to the division. The ability of divisions to create their own rules and policies is limited to those which are consistent with the rules and policy of the CFMMEU as decided by the National Conference or the National Executive.[1]

1. The election of the NWC Members appears to be a matter involving the election of officers within the Division for the purposes of sub-rule 27(ii)(b) of National Rules and they do not appear to be “National Officers” as defined in the National Rules.

1. For the above reasons, I am satisfied that the alterations to the Divisional Rules in the present matter are consistent with the National Rules.

1. I further note that the establishment of the NWC Members pursuant to National Rules predates the lodgement of the notice of particulars in the present matter. As noted above, the alterations solely concern the manner in which the NWC Members from the Division are to be elected. To the extent that it is relevant to my consideration of the present matter, I am satisfied that the alterations are not contrary to subsection 142(1)(d) of the Fair Work (Registered Organisations) Act 2009 or the Sex Discrimination Act 1984 for the reasons set out in several previous decisions.[2]

1. The declaration of Mr David Noonan, Divisional Secretary, dated 9 November 2020 and lodged with the notice of particulars contained an apparent error regarding the date of the Divisional Executive meeting during which the alterations were made. On 22 December 2020, the Division confirmed that the date of that meeting was 22 October 2020.

1. On the information contained in the notice and the further correspondence of the Division, I am satisfied the alterations have been made under the rules of the organisation.

1. In my opinion, the alterations comply with and are not contrary to the Fair Work (Registered Organisations) Act 2009, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

[1] Rule 27(iv) of the National Rules. See also O’Connor v Setka [2020] FCAFC 195, [128].

[2] The Association of Professional Engineers, Scientists and Managers, Australia [2017] FWCD 4034; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2018] FWCD 6837.

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