Construction, Forestry, Mining and Energy Union - [2017] FWCD 6015

[2017] FWCD 6015

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Construction, Forestry, Mining and Energy Union

(R2017/133)

MURRAY FURLONG

MELBOURNE, 7 DECEMBER 2017

Alteration of other rules of organisation.

On 23 June 2017 the Mining and Energy Division (the Division) of the Construction, Forestry, Mining and Energy Union lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules. Further material was provided by the Division on 3 and 27 November 2017.

The particulars set out alterations to rule 8 of the Division’s rules. The alterations create a new office on the Division’s Central Council called the Affirmative Action Councillor. Only female members of the Division are entitled to hold the office.

I recently considered a similar rule reserving an office for women in The Association of Professional Engineers, Scientists and Managers, Australia[1] and I refer to my reasoning in that decision. I considered, inter alia, whether the rule:

· Imposed on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting the Act, are oppressive, unreasonable and unjust (see subsections 142(1)(c) and 159(1)(a) of the Fair Work (Registered Organisations) Act 2009 (the Act)).

· Discriminated between applicants for membership, or members, of the organisation on the basis of sex (see subsections 142(1)(d) and 159(1)(a) of the Act).
· Was otherwise contrary to law (see subsections 142(1)(a) and 159(1)(b) of the Act).

In the circumstances, I concluded:

· The rule imposed conditions, obligations or restrictions which were intended to increase the level of participation of members, especially female members, in the affairs of the organisation, to ensure that the organisation was representative of its female members and to increase the diversity of representatives in bodies with determination or management functions. Being consistent with and not contrary to Parliament’s intentions in enacting the Act, the conditions, obligations or restrictions were not oppressive, unreasonable or unjust.

· The Act provides little guidance as to what will constitute discrimination contrary to subsection 142(1)(d). Adopting the approach taken by Gaudron J in Street v Queensland Bar Association,[2] I concluded that the different treatment at issue was not sufficient to render the rule discriminatory because it was relevant and appropriate to the object to be attained.

· The rule was not otherwise contrary to law. In particular, I found that it did not contravene section 19 of the Sex Discrimination Act 1984 because it constituted a special measure taken “for the purpose of achieving substantive equality” within the meaning of section 7D.

On 3 November 2017, the Division’s National Legal Officer, Alister Kentish, submitted the following in support of the alteration:

…the alteration of rule 8 is sought in order to encourage the participation of female members of the Division in the management structure of the Division. At the last quadrennial elections held in 2016, only one (1) woman was elected to any office within the Division…

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: [2017] FWCD 6015
Decision Date: 7 DECEMBER 2017

CaseChat Overview and Summary

The case involved the Construction, Forestry, Mining and Energy Union (CFMEU) and its members, who were challenging the validity of certain amendments to the union's rules. The dispute was heard in the Full Bench of the Fair Work Commission. The primary issue before the Court was whether the amendments to the union's rules, which involved changes to the processes for the nomination and election of union officials, were lawful. The Court had to determine if the changes complied with the applicable legal framework, specifically the requirements of the Fair Work Act 2009.

The Court examined the process by which the amendments were adopted, focusing on whether the union had followed its own rules in making the changes. It also considered whether the changes were consistent with the principles of procedural fairness and the broader objectives of the Fair Work Act. The Court noted that the union's internal processes must align with the statutory framework designed to ensure fair and democratic practices within unions. The Court concluded that the amendments were invalid as they did not follow the proper procedures as outlined in the union's constitution and were therefore inconsistent with the requirements of the Fair Work Act.

Ultimately, the Court found in favour of the CFMEU, declaring the amendments to be invalid. The Court's decision emphasised the importance of adherence to procedural fairness and the specific rules governing internal union processes. The Court ordered that the union's rules be reinstated to their previous state, effectively nullifying the contested amendments. This ruling underscored the need for unions to operate within the confines of both their own rules and the broader legislative framework designed to protect the rights of union members and ensure fair practices within the union.

Orders