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.

1. 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.

1. 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.

1. 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).

1. 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.

1. 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 and that office was the Female Affirmative Action position on the Board of Management in the Northern Mining and NSW Energy District.

Whilst we acknowledge that the industries from which the Division's members are drawn tend to be male dominated, the Division believes that the current level of representation within the Division is disproportionately low. Further, as an important and influential stakeholder in the mining, black coal mining and electrical generation industries, the Division wishes to positively influence opportunities for women within those industries. It is in that context that the Central Council has decided, and the membership endorsed, the proposed rule change of introducing an affirmative action position to the Central Council.

1. Mr Kentish submits that substantive equality has not yet been achieved in the Division’s management structure and that the object of the rule is to address this. In light of Mr Kentish’s submission, I find that the conclusions outlined above are equally applicable to the rule presently before me.

1. On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

1. On 27 November 2017, Grahame Kelly, General Secretary of the Division, gave consent under subsection 159(2) of the Act for me to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly the following corrections have been made:

·   In proposed sub rule 8(i)(d), the reference “8(i)(c)(4)” is amended to “8(i)(c)(2)”.

·   In proposed sub rule 8(i)(e)(iii), the word “members” is deleted where it appears immediately before “(4000)”.

1. In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] [2017] FWCD 4034.

[2] (1989) 168 CLR 461.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR597775>

Printed by authority of the Commonwealth Government Printer

<Price code A, PR597775>