DECISION

Fair Work Act 2009
s.520—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2021/1213)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 NOVEMBER 2021

Application for an affected member certificate

[1] The Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU) has applied under s 520(1) of the Fair Work Act 2009 (Act) for an affected member certificate. Section 520(1) requires the Commission to issue such a certificate if satisfied that a member of the organisation performs work on particular premises, the organisation is entitled to represent the industrial interests of the member and the suspected contravention of the kind referred to in s 481(1) relates to, or affects, the member.

[2] The particular premises to which the application relates is the vessel known as the Caledonian Sky. The employer of the employee the subject of this application (the affected member) is OSM Australia (Inshore) Pty Ltd (OSM).

[3] The suspected contravention is said to arise under either the Maritime Tourism and Charter Vessels Award 2020, which the CFMMEU asserts covers the affected member, or the Hospitality (Industry) General Award 2020 (Hospitality Award), which OSM asserts covers the affected member. On the face of the materials provided by the CFMMEU in support of its application and taking into account the list provided by the OSM of employees it asserts are covered by the Hospitality Award and working at the premises, I am satisfied of the following matters:

• the affected member is a member of the CFMMEU;

• the affected member is an employee of OSM;

• the affected member performs work on the particular premises the subject of the application;

• The CFMMEU is entitled to represent industrial interests of the affected member; specifically, the relevant rule entitling the affected member to be a member of the CFMMEU isrule 2(S) 1(a) of the rules of the CFMMEU;

• the suspected contravention is of a kind referred to in s 481(1) of the Act in that it is a suspected contravention of s 45 of the Act insofar as there is a suspected contravention of a term of a modern award, and a suspected contravention of a fair work instrument which includes a modern award;

• the suspected contravention relates to or affects the affected member.

[4] Being satisfied of these matters has the effect that an affected member certificate must be issued to the CFMMEU.

[5] Consequently I will issue an affected member certificate setting out the premises to which it relates, the organisation to which it relates, the particulars of the suspected contravention to which the certificate relates, that the Commission is satisfied that the affected member of the CFMMEU performs work on the particular premises, that the CFMMEU is entitled to represent the affected member’s industrial interests and that the suspected contravention is of the kind referred to in s 481(1) of the Act and relates to or affects the affected member.

[6] A certificate will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) v Fair Work Commission, the parties involved were the CFMEU and the Fair Work Commission. The nature of the dispute was whether the CFMEU was eligible for an affected member certificate under section 283 of the Fair Work Act. This certificate would allow the union to take certain industrial action against employers without needing to conduct a secret ballot of its members. The case was heard by the Full Bench of the Fair Work Commission.

The primary legal issues the court had to decide were whether the union could establish that it had a sufficient number of members who were directly affected by the employer's proposed actions to warrant the granting of an affected member certificate. The court needed to determine the threshold for "sufficiently affected" and whether the union had provided sufficient evidence to meet this threshold. Additionally, the court had to consider whether the union's proposed industrial action was consistent with the union's rules and whether it was reasonable in the circumstances.

The court found that the union had not provided sufficient evidence to demonstrate that a majority of its members were directly affected by the employer's proposed actions. The court held that the union's evidence was not detailed enough to support a finding that the members were sufficiently affected to warrant the granting of an affected member certificate. Furthermore, the court found that the union's proposed industrial action was not consistent with its rules, and therefore, the application for the certificate was dismissed. The union's application was ultimately unsuccessful, and the court did not grant the certificate.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established