Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWCD 6505

[2020] FWCD 6505

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

(R2020/182)

MURRAY FURLONG MELBOURNE, 16 DECEMBER 2020

Alteration of other rules of organisation.

1. On 23 October 2020, the Mining and Energy 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 the following Divisional Rules:

·  1- Name;

·  2- Definitions;

·  3- Membership of the Division;

·  4 – Objects;

·  6 – Membership;

·  8 – Central Council;

·  10 – The Central Executive;

·  12 – District Branches;

·  11- Finance and Property;

·  17 – Ballot; and

·  18 – Eligibility for Divisional Office (retitled as “Divisional Office”).

1. The particulars also set out in the insertion of new rule 21 – Keeping of Minute Books in the Division.

1. The alterations to rule 3 relate to the membership of the CFMMEU explicitly attached to the Division. On 24 November 2020, the Commission wrote to the Division seeking clarification regarding the effect of those alterations in the context of rules of the CFMMEU as a whole.

1. On 1 December 2020, the Division indicated that it wished to press the determination of the remaining alterations set out in the notice of particulars as soon as possible and further advised that it would respond to the matters raised by the Commission with regard to the alterations to rule 3 in due course.

1. I am satisfied that the alterations to rule 3 are severable from the other alterations set out in the notice of particulars in light of the principles set out by the majority in Re Food Preservers’ Union of Australia (1988) 79 ALR 138. In particular, I am satisfied that the remaining alterations operate independently of the alterations to rule 3 and their severance will not affect the meaning and effect of the remaining alterations.

1. The determination of the alterations to rule 3 will be undertaken at a later time in light of any further information and/or submissions the Division may wish to make in order to reach the requisite level of satisfaction with respect to the matters set out in subsection 159(1) of the Fair Work (Registered Organisations) Act 2009 (the Act).

1. The alterations to rules 1 and 2 amend the name of the Division and specify that the Central Council of the Division is synonymous with the terms “Divisional Conference” and “Divisional Executive” as they appear in the overarching rules of the CFMMEU.

1. The alterations to rule 4 amend the explicit objects of the Division.

1. The alterations to rule 6 pertain to the keeping of the Register of Members by a District Branch of the Division including making a specific reference to the keeping of that register in a separate part or section of the office of a District Branch in accordance with subsection 234(2) of the Act.

1. The alterations to rules 8 and 10 include explicitly vesting the Central Council and the Central Executive with the power to conduct a “risk assurance review” of the Division or a District Branch with respect to “standards of good governance and oversight.” This entails the power to appoint an auditor, officer or an appropriately qualified employee or external person to conduct such a review and the stipulation that senior officers of the Division or a District Branch may be required to provide a written response regarding the review’s outcomes.

1. The alterations to rule 10 also introduce a facility for the Central Executive to appoint a Vice President of the Division to act in the position of General Secretary or General President if the holders of those offices are temporarily unable to perform their duties due to absence, illness or injury.

1. The alterations to rule 11 include the provision of a measure of flexibility regarding the timing of the audit of the Division’s accounts.

1. The alterations to rule 17 relate to direct elections for office within the Division and District Branches and include specifying that the voting method will be “first past the post”, providing for the withdrawal of nominations and that, in the event of a tie of votes, the candidate currently holding the office will be declared elected or by the casting of lots where no relevant candidate currently holds the office.

1. The alterations to rule 18 include the insertion of new sub-rule 18(ii) which provides that where an election is unable to be held so as to enable a successor to commence office, the person holding that office may continue to exercise the powers of the office until an election can be held.

1. The new rule 21 provides for the keeping of minute books recording proceedings and resolutions of meetings of the committees of management of the Division and District Branches in accordance with subsection 141(1)(b)(iia) of the Act.

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

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