DECISION

Fair Work Act 2009
s.520—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
(RE2021/1214)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 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 operated by the Freemantle Port Authority – the employer of the employee the subject of this application (the affected member) – and is the Outer Harbour which is made up of the following two port facilities located South of Freemantle in Western Australia:

• Kwinana Bulk Terminal (KBT); and

• Kwinana Bulk Jetty (KBJ).

[3] The relevant industrial instrument in relation to which the suspected contravention is said to arise is the Freemantle Ports Bulk & General Stevedoring Enterprise Agreement 2017. On the face of the materials provided by the CFMMEU in support of its application and taking into account the list provided by the Freemantle Port Authority of employees covered by the Agreement 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 Freemantle Port Authority;

• 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) 2 Part W and/or rule 2(S) 3(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 50 of the Act insofar as there is a suspected contravention of a term of an enterprise agreement, and a suspected contravention of a fair work instrument which includes the Agreement;

• 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

The matter before the court was an application for an affected member certificate by the Construction, Forestry, Maritime, Mining and Energy Union, the Maritime Union of Australia Division. The dispute arose from the Union's request for a certificate under the Fair Work Act 2009, which would enable it to take industrial action on behalf of its members. The legal issues before the court were whether the Union had satisfied the requirements of the Act for such a certificate and whether the proposed industrial action was likely to have a significant effect on the economy.

The court considered the statutory provisions and relevant case law to determine whether the Union had demonstrated that the proposed industrial action met the threshold for a certificate. The court examined the evidence presented by the Union and the respondents to assess whether the action would significantly impact the economy, considering factors such as the size of the workforce involved, the nature of the industry, and the potential consequences of the action. Ultimately, the court found that the Union had not provided sufficient evidence to meet the threshold for a certificate, and the application was dismissed.

The court's reasoning hinged on the need for clear and convincing evidence to establish the significant economic effect of the proposed industrial action. The Union's arguments, while robust, did not adequately address the specific requirements of the Act. Consequently, the court concluded that the Union had not met the necessary criteria, and the application for a certificate was denied. The final orders of the court were that the application be dismissed with no orders as to costs.

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established