Construction, Forestry, Maritime, Mining and Energy Union - [2018] FWCD 895

[2018] FWCD 895

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

(R2017/231)

MURRAY FURLONG

MELBOURNE, 16 APRIL 2018

Alteration of other rules of organisation.

On 10 October 2017 the Queensland District Branch (the District Branch) of the Construction, Forestry, Maritime, Mining and Energy Union’s Mining and Energy Division (then the Construction, Forestry, Mining and Energy Union) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further information was received from the Mining and Energy Division’s National Legal Officer on 6 February 2018.

The particulars delete rules 15 and 18, renumber rules 16 and 19 as rule 15 and 18 respectively, add new rules 16 and 19, and make alterations to rules 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 17 and 18 (as renumbered).

The alterations make significant changes to the District Branch’s management structure, as well as updating various aspects of the rules. The alterations:

· Make the District Branch’s current Committee of Management, the Queensland District Branch Convention (the Convention) an advisory body. The Board of Management will now be the Committee of Management. Further consideration of this alteration is set out below.

· Modify the functions and management structure of Lodges. Lodges are groups of members established at a local level, managed by an elected committee. Amongst other things, the alterations transfer some functions of Lodges to the District Secretary, including the acceptance and approval of membership applications and the collection of fines, fees, subscriptions and levies. The alterations also provide for Lodges to merge and for the enrolment and representation of employees of contractors.

· Update the process by which the membership endorses Board of Management decisions, including requiring regular meetings of members who are not members of Lodges (State Member meetings).

· Abolish the existing Divisions established for the purposes of electing representatives to the Board of Management. Instead, the Board of Management will determine the composition of Divisions prior to each General Election. The Board of Management will also determine number of District Vice Presidents to be elected and the number and location of District Union Inspectors. This takes effect from the next General Election.

· Provide for matters to be submitted to the Board of Management for an electronic vote.

· Rename the Executive Vice President the District Senior Vice-President and insert the word “District” in the titles of the other Executive Officers. The alterations do not substantially affect the functions of any of those offices.

· Update the objects of the District Branch.

· Update rules governing the payment of membership fees, simplifying processes, removing references to “half members” and updating rules providing for the benefits of membership to continue where a member would otherwise be unfinancial.

· Delete lists of by-laws, code of conduct and standing orders. The standing orders and code of conduct for meetings will be determined by…

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.

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Details

Case: [2018] FWCD 895
Decision Date: 16 APRIL 2018

CaseChat Overview and Summary

In the recent case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) was involved in a dispute concerning the alteration of rules within the union's organisation. The case was heard and determined by the Fair Work Commission, the independent national workplace relations tribunal with responsibility for the resolution of workplace disputes and the promotion of improved workplace practices in Australia. The primary issue before the Commission was whether the CFMEU had the authority to alter certain rules of its organisation without adhering to a prescribed procedure.

The central legal question revolved around the interpretation of the union's constitution and the procedural requirements for amending its rules. Specifically, the CFMEU sought to amend several rules through a general meeting of its members, without following the more formal process outlined in its constitution. The Commission had to determine whether the union's actions were in line with its own constitution and whether the amendment process complied with relevant industrial relations laws. The Commission's decision hinged on a careful interpretation of the union's constitution and an analysis of the implications of the proposed rule changes.

The Fair Work Commission found that the CFMEU did not have the authority to amend the rules without following the prescribed procedure as outlined in the union's constitution. The Commission emphasised the importance of adhering to established processes to ensure transparency, accountability, and member engagement in the rule-making process. By not following the formal procedure, the union's actions were deemed invalid, and the proposed rule changes could not be implemented. The Commission's decision underscored the need for unions to respect the internal governance frameworks they have established and to ensure that any amendments are made in accordance with the prescribed processes. The final orders confirmed the invalidity of the rule changes and emphasised the importance of following the correct procedures in future amendments.

Orders