Construction, Forestry, Maritime, Mining and Energy Union
[2019] FWCD 4886
•24 JULY 2019
| [2019] FWCD 4886 |
| 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
(R2019/89)
| MURRAY FURLONG | MELBOURNE, 24 JULY 2019 |
Alteration of other rules of organisation.
On 8 July 2019, the Construction, Forestry, Maritime, Mining and Energy Union (the “CFMMEU”) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to the rules of the CFMMEU (the “National Rules”).
The particulars set out an alteration to rule 48 of, and the insertion of a new rule 48A into, the National Rules.
On the information contained in the notice, I am satisfied the alterations have been made under the rules of the CFMMEU.
The alterations pertain to the election of the following offices: State Secretary, State Assistant Secretary, State President, State Senior Vice President and State Joint Vice President (collectively, the “State Officers”). The State Officers are the principal officers of the Branches of the CFMMEU. The CFMMEU contains the following Branches: Queensland, New South Wales, Victoria, Tasmania, Western Australia, South Australia and the Australian Capital Territory (collectively, the “State Branches”). The effect of the alterations is that the State Officers in the New South Wales Branch will be filled on an ex officio basis rather than by election as currently pertains to all the State Branches with the exception of the Australian Capital Territory Branch.
In order to consider the effect of the alterations in the present matter, it is necessary to construe them in the context of the rules of the CFMMEU as a whole. In particular, it is necessary to consider the role and function of the State Branches and the State Officers within the broader structure of the CFMMEU and the manner in which the State Officers are currently elected.
As its name suggest, the CFMMEU is an organisation formed through a series of amalgamations the most recent being that with the former The Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia which took effect on 27 March 2018. This history is reflected in the establishment of, and significant role played by, the four Divisions of the CFMMEU, namely:
· The Construction and General Division;
· The Manufacturing Division;
· The Mining and Energy Division; and
· The Maritime Union of Australia Division.[1]
Each of the above Divisions is afforded autonomy to pursue the interests of its membership and govern its own affairs “without any interference by any other body within the [CFMMEU].”[2] Such autonomy embraces matters such as the pursuit of the industrial interests of its membership, the structure and election of offices within a Division, the management and custody of the funds and property of a Division and the making and amendment of rules pertaining to a Division.[3]
Accordingly, each Division has adopted and is governed by a set of Divisional Rules (collectively, the “Divisional Rules”)[4] which must not be inconsistent with the National Rules and the policy of the CFMMEU as determined by the National Conference and the National Executive.[5] Each of the Divisional Rules set out fundamental matters such as:
· Eligibility for membership of the Division;
· The establishment of the governing bodies and officers of each Division including their duties and powers;
· The management of the property and funds of a Division;
· The election of officers; and
· The manner in which the Divisional Rules may be altered.
Each of the Divisional Rules provide for an Executive (collectively the “Divisional Executives”) and a broader body referred to as a Divisional Conference, Central Council or Divisional National Council to determine the policy and manage the business and affairs of each Division. For the purposes of the National Rules, the Divisional Executive of The Maritime Union of Australia Division is deemed to be the Divisional National Council.[6]
The Divisional Rules also establish various Divisional Offices (e.g. Secretary, President) and set out their powers and duties.
The Divisional Rules also establish Divisional Branches, District Branches or Districts (collectively the “Divisional Branches”) and contain provisions which generally mirror the provisions outlined above as they apply to the governance of such branches. For example, the Divisional Rules provide that the Divisional Branches shall be governed by a body made up of representatives directly elected by the membership (Council, Management Committee, Board of Management or Committee) and a smaller committee which manages the affairs of the Divisional Branch in between meetings of the that body (Committee of Management or Executive). They also provide for the various officers of the Divisional Branches.
Lest the above outline of the Divisional Rules gives the impression that they are standard or uniform, I note that each of them contain important differences with regard to matters such as the structure and composition of each Division’s governing bodies, the extent of control exercisable by, and participation of, the membership in the decisions of the Division, the autonomy afforded to each Divisional Branch to make rules or adopt policies specific to their operations and the establishment of industry specific sectors.
At a national level, the CFMMEU is governed by the National Executive Committee, the National Executive and the National Conference.
The National Executive Committee comprises the National Officers of the CFMMEU and additional members from each Division elected by and from the members of the governing bodies of the Divisions or appointed on an ex officio basis. The National Executive Committee exercises its powers subject to review by the National Executive and its role is largely one of the management and administration of the affairs of the CFMMEU such as enforcing the policies determined by the National Conference and the National Executive.[7]
The National Executive consists of the members of the National Executive Committee, the principal officer of each Divisional Branch that is not otherwise a member of the National Executive Committee (special provisions apply to the Manufacturing Division in this regard) and female members from each Division in certain circumstances. The National Executive exercises all the powers of the National Conference with respect to the affairs, business, funds and property of the CFMMEU. Its decisions may be overturned by the National Conference.[8]
The National Conference is the supreme governing body of the CFMMEU and is generally convened every two years. The composition of the National Conference includes the members of each Divisional Executive, any remaining voting members of the National Executive and two members from the National Women’s Committee elected by each Division. Its powers include the determination of the policy of the CFMMEU, the establishment of Divisions and the raising and expenditure of the funds of the CFMMEU.[9]
The National Executive and the National Conference are both vested with the power to make alterations to the National Rules. However, reflecting the importance of the autonomy of the Divisions outlined above, no such amendment may be effected without the approval of a Division if it impinges upon such autonomy or affects the existence of a Division.[10]
The above structure is maintained by the payment of capitation or sustentation fees by the Divisional Branches to the Divisions and, in turn, by the payment of such fees by the Divisions to the National Office and/or the National Conference.[11]
Turning to the State Branches, rule 28(i) of the National Rules provides for the establishment of the seven State Branches referred to in paragraph [4] above. However, it further indicates that it is open for the National Conference or the National Executive to abolish any State Branch.
The supreme governing body of a State Branch is the State Conference which is ordinarily convened every two years.[12] The State Executive may exercise the powers of the State Conference subject to review by the State Conference.[13]
The function of the State Branches is essentially to co-ordinate the Divisional Branches at a State or Territory level and the State Conference and State Executive are vested with powers necessary for that purpose. Such powers include:
· the performance of functions referred to it by the Divisional Branches;
· affiliating to any body for and behalf of any Divisional Branch or, with the agreement of each Divisional Branch for and behalf of the State Branch as a whole;
· supervise the funds, if any, paid to the State Branch by the Divisional Branches; and
· subject to review by Divisional Executives and the National Executive, settle disputes between Divisional Branches.
In potentially exercising such powers, State Branches are bound by the decisions of the National Executive and the National Conference and, with respect to a matter affecting one Division only, a Divisional Executive. The State Officers are also bound by the directions of the National Executive Committee.[14]
Finally, it should be noted that State Branches are empowered to adopt by-laws not inconsistent with the rules of the CFMMEU.[15]
The State Conference consists of all the members of the committee of management of each Divisional Branch within the State or Territory covered by the State Branch.[16] The State Executive is composed of the full time elected officers of each Divisional Branch several of whom must be the State Officers.[17]
Rule 48 of the National Rules provides that the State Officers are elected by and from the members of the State Conference. Each Division must be represented by at least one State Officer and hold at least one position of Joint Vice President. The nominee for each of the State Officers is determined by resolution of the committee of management of the relevant Divisional Branches. Rule 47 suggests that the relevant nominee must be a full time officer of the Divisional Branch.
Given that the Australian Capital Territory Divisional Branch of the Construction and General Division is the only Divisional Branch with coverage specifically within the confines of the Australian Capital Territory, the State Officers for the Australian Capital Territory Branch are the equivalent officers within that Divisional Branch.[18]
Rule 51 provides that the rights and duties of the State Officers and the members of the State Executive shall be the same as those of the National Officers and the National Executive Members with necessary changes being made.
As noted above, the effect of the alterations in the present matter is that the State Officers of the New South Wales Branch will be filled on an ex officio basis rather than being subject to election by and from the members of the New South Wales State Conference. New rule 48A provides that the principal officers (Secretary, President, Assistant Secretary) of the seven Divisional Branches within New South Wales across each of the four Divisions shall also hold a specified office of either State Secretary, State Assistant Secretary, State President, State Senior Vice President, State Joint Vice President or State Assistant Joint Vice President. In this regard, the State Assistant Joint Vice President is apparently a new office.
I shall now consider whether the alterations are consistent with the relevant provisions of the Act.
Section 143(1)(a) of the Act provides that the rules of an organisation must provide for the election of the holder of each office of the organisation by either a direct voting system or a collegiate electoral system as defined in the Act. In Re Airline Hostesses Association (1980) 37 ALR 110, a Full Court of the Federal Court considered the issue of whether the rules of an organisation which provided for the filling of offices on an ex officio basis were contrary to s. 133(1)(a) of the Conciliation and Arbitration Act 1904 (the predecessor of s. 143(1)(a) of the Act) in this regard. The majority held that the rules in question were consistent with s. 133(1)(a) as it required that the holder of every office in an organisation must be elected rather than requiring an election for each and every office.
Based on such authority, I am satisfied that the alterations in the present matter are consistent with s. 143(1)(a) of the Act.
The other provision of the Act of potential application is s. 142(1)(c) which provides that the rules of an organisation must not impose on applicants for membership, or members, conditions, obligations or restrictions that, having regard to the objects of the Act and the Fair Work Act 2009, are “oppressive, unreasonable or unjust”.
The alterations in the present matter raise two separate considerations in this regard, namely, any intrinsic detriment suffered by the membership of the New South Wales Branch as a consequence of the State Officers being filled on an ex officio basis and any particular disadvantage suffered by such members vis-à-vis the members of the other State Branches. Regarding the latter, the Federal Court expressed the following general principle in Bramich v Transport Workers’ Union of Australia (2000) 97 FCR 204:
if an organisation elects to assign its members to branches or divisions, it must not do so in a way which significantly discriminates or differentiates between members in the extent of quality of their participation in the democratic control, or the affairs, of the organisation.[19]
In my view, the following three matters must be taken into account when determining whether the alterations are consistent with s. 142(1)(c) of the Act in this regard.
Firstly, as the exposition of structure of the CFMMEU above demonstrates, the State Branches play a role which is clearly of lesser importance than the Divisional Branches, the Divisions and the governing bodies at a national level.
The State Branches essentially function to co-ordinate the activities of the Divisional Branches at a State or Territory level and the State Conference and the State Executive have very limited inherent powers in performing this role. The State Branches may also be abolished by the National Executive or the National Conference and are only empowered to adopt by-laws rather than rules to govern their activities.
By contrast, the Divisions have a large degree of autonomy with respect to matters only affecting the membership of a Division and this autonomy is protected in the National Rules. The Divisions are free to adopt rules to govern their operations not inconsistent with the policy of the CFMMEU at a national level or the National Rules, determine the policy of the Division, raise and dispose of the funds of the Division and exercise other powers affecting the Division. The Divisional Rules also, to a greater or lesser degree, afford the Divisional Branches a level of autonomy to determine matters pertaining to the membership of a Divisional Branch. At a national level, the National Executive and the National Conference perform important functions on an organisation-wide basis.
An indication of the limited role played by the State Branches is provided by their reported financial status. In this regard, I note that the Registered Organisations Commissioner issued certificates under s. 271 of the Act to each State Branch with respect to the financial year ending 31 December 2018.[20] Those certificates exempt each State Branch from the auditing and reporting requirements under Part 3 of Chapter 8 of the Act and were issued on the basis that they did not have any financial affairs in that financial year. I note that the certificates were issued prior to the decision in Construction, Forestry, Maritime, Mining and Energy Union v Registered Organisations Commissioner [2019] FCA 435.
Given this, it is apparent that the powers potentially exercisable by the persons occupying the State Officer positions, simply by virtue of holding that office, are of a quite limited nature with respect to the operations of the CFMMEU and the interests of its membership. The impact of alterations such as those in the present matter would be of much greater significance and of a fundamentally different nature if they applied to the filling of offices at a Divisional or Divisional Branch level.
Secondly, it is important to take into account the manner in which the State Officers are elected pursuant to the existing National Rules. More specifically, the State Officers are elected by and from the members of the State Conference. The State Conference itself is made up of persons who are members of this body on an ex officio basis. The nominee for each State Office is determined by the committee of management of the relevant Divisional Branch rather than nominations being open to any member of the State Conference.
Seen in this context, the alterations represent, in my view, a relatively minor change in the quality of the participation of the membership in the affairs and the democratic functioning of the CFMMEU. Currently, the relevant nominee from each Divisional Branch is tightly controlled and the pool of potential candidates is quite limited. From the perspective of a person in his or her capacity as a member of a Divisional Branch, a Division or a State Branch, the effect of the alterations is of quite limited significance.
Finally, as noted above, rule 48A allocates a State Officer position to the principal officers of each of the seven Divisional Branches in New South Wales. In terms of the Divisions, the Construction and General Division is allocated 3 offices, The Maritime Union of Australia Division is allocated 3 offices, the Manufacturing Division is allocated 2 offices and the Mining and Energy Division is allocated 2 offices. The distribution of the five most notable offices of State Secretary, State Assistant Secretaries, State President and State Senior Vice President is also relatively equal with the Construction and General Division enjoying one more position compared to the other three Divisions. Consistent with rule 48, each Division holds one of the four offices of State Joint Vice President established.
In my view, taking the above considerations into account and in light of the objects of the Act, the alterations in the present matter do not impose a condition or restriction which is oppressive or unreasonable on the membership of the CFMMEU in New South Wales. Further, I am also satisfied that the alterations do not significantly discriminate or differentiate between such members and the members of the other State Branches in the extent of their democratic participation in the affairs of the CFMMEU. I note that similar provisions operate with respect to the Australian Capital Territory Branch by necessity.
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
<PR710304>
[1] Established pursuant to rule 27(i) of the National Rules.
[2] Rule 27(ii) of the National Rules.
[3] Rule 27 of the National Rules.
[4] The Divisional Rules can be accessed at
[5] Rule 27(iv) of the National Rules.
[6] Rule 5 of the National Rules.
[7] Rule 14 of the National Rules.
[8] Rule 15 of the National Rules.
[9] Rule 13 of the National Rules.
[10] Rule 25 of the National Rules.
[11] Rules 22(i) & 22(ii) of the National Rules.
[12] Rule 46 of the National Rules.
[13] Rule 47 of the National Rules.
[14] Rules 28 & 46 of the National Rules.
[15] Rule 28(ii) of the National Rules.
[16] Rule 46 of the National Rules.
[17] Rule 47 of the National Rules.
[18] Rule 48(i) of the National Rules.
[19] At 214.
[20] See matters FR2018/339, FR2018/324, FR2018/325, FR2018/326, FR2018/340, FR2018/300, FR2018/332 accessible at
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