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

[2021] FWC 6365

[2021] FWC 6365

FAIR WORK COMMISSION

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

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