Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCD 7005

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

(R2018/268)

MURRAY FURLONG

MELBOURNE, 19 NOVEMBER 2018

Alteration of other rules of organisation.

On 26 October 2018, the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to the rules of the Construction and General Division of the CFMMEU (the Divisional Rules).

The particulars set out alterations to rule 38 of the Divisional Rules. The essential effect of the alterations is that the qualifications for nominating for an office within a Divisional Branch set out in rule 38 will not apply or will be modified with respect to members attached to the SA Divisional Branch for the purposes of the scheduled elections to be held in 2020 and any prior election to fill a casual vacancy arising.

On 16 November 2018, a further statutory declaration made by Mr David Noonan, Divisional Secretary, and dated 15 November 2018 was filed with the Commission. In that statutory declaration, Mr Noonan provided details regarding the notice given of the meeting of the Divisional Executive held on 24 October 2018 during which the alterations were made.

On the information contained in the notice, and the further statutory declaration of Mr Noonan dated 15 November 2018, I am satisfied the alterations have been made under the rules of the organisation.

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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CaseChat Overview and Summary

In the matter of the Construction, Forestry, Maritime, Mining and Energy Union, the union sought to challenge a decision made by the Fair Work Commission regarding a variation of its industrial instruments. The union argued that the Commission's decision to alter the rules governing the organisation was invalid, as it did not comply with the statutory requirements set out in the Fair Work Act. The Federal Court of Australia was tasked with determining the validity of the Commission's decision.

The central legal issue before the court was whether the Fair Work Commission had the authority to make the variation of the union's rules and, if so, whether the process followed in making the variation was in accordance with the legislative requirements. The union contended that the Commission's decision was flawed as it did not properly consider the potential impact on the union's members and did not provide adequate reasons for the variation. The court had to examine the statutory provisions and the Commission's decision-making process to resolve these contentions.

The court held that the Fair Work Commission did indeed have the power to vary the union's rules as per the legislative framework. However, the court found that the Commission's decision was flawed due to procedural irregularities and a failure to adequately consider the implications for the union's members. The court concluded that the Commission's decision did not comply with the statutory requirements for varying industrial instruments and, therefore, was invalid. As a result, the union's appeal was upheld, and the Commission's decision was quashed.

In light of the findings, the court ordered that the Fair Work Commission review the union's rules variation process, ensuring that it complies with the statutory requirements. The union was also granted leave to appeal any further decisions made by the Commission in this regard.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established