Construction, Forestry, Mining and Energy Union - [2015] FWCD 4588

[2015] FWCD 4588

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Construction, Forestry, Mining and Energy Union
(R2015/19)
MR ENRIGHT	MELBOURNE, 6 AUGUST 2015
Alteration of other rules of organisation.

[1] On 10 February 2015, the Construction, Forestry, Mining and Energy Union

(CFMEU) lodged with the Fair Work Commission (Commission) a notice and declaration

setting out particulars of alterations to the rules of the CFMEU.

[2] The particulars provide for the insertion of new rule 26A into the rules of the CFMEU

in the following terms:

“26A Complaints by Members
1. Any financial member of the Union may raise a complaint over the actions of
another member or members (including officers).
2. The complaint may be about a member or members:

a. refusing to obey the rules of the union;
b. refusing to obey a policy of the union;
c. refusing to abide by a resolution carried at a properly constituted
meeting of a management committee which has relevant control or
management over the member;

d. obstructing any properly constituted meeting of a management
committee;

e. obstructing any officer or employee of the union in the course of his/her
duties;

f. Misappropriation of the funds of the union;
g. engaging in gross misbehaviour;
h. engaging in gross neglect of duty;

[2015] FWCD 4588

i. wrongfully and unreasonably holding out that he or she holds an office
or position in the union;

j. making a false charge or complaint against a fellow member, including
a complaint under this rule; or

k. aiding or encouraging any other member or members in any of the
matters referred to above.

3.          Members shall not subject a member who has made a complaint under this rule
to adverse treatment.
4.          The complaint must be raised in writing to the National Secretary. The
complaint must clearly identify the member or members the subject of the
complaint and the relevant action or actions that gave rise to the complaint. If
the complaint is about the conduct of the National Secretary then the complaint
may be raised with another National Officer.
5.          The National Secretary (or if another National Officer receives the complaint,
that National Officer) and at least one of the National Assistant Secretary or
National President may refuse to accept a complaint if he or she considers the
complaint to be trivial.
6.          The National Secretary must refer the complaint to the National
Executive Committee for the purpose of appointing an Investigator.
7.          The National Executive Committee shall appoint an Investigator.
The Investigator must be a member of the National Executive. The Investigator
must not be an officer from the same Division as the member or members the
subject of the complaint.
8.          The Investigator shall investigate the complaint and provide a report to
the National Executive Committee.
9.          During the course of the investigation the Investigator may:

a. interview members or officers for the purpose of the investigation, and
b. require members or officers to provide documents relevant to the

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.

Continue reading Construction, Forestry, Mining and Energy Union

Details

AGLC: Construction, Forestry, Mining and Energy Union [2015] FWCD 4588
Case: [2015] FWCD 4588
Decision Date: 7 August 2015

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) proposed an alteration to its rules, specifically the introduction of a new rule 26A, which outlines a procedure for dealing with complaints made by members about the conduct of other members or officers. The proposed rule allows for the raising of complaints about various specified actions, the appointment of an investigator to look into the complaint, and the power of the National Executive Committee to take disciplinary action based on the investigator's findings. The alteration was subject to the certification by the Fair Work Commission under section 159 of the Fair Work (Registered Organisations) Act 2009. The Commission raised several concerns regarding the potential oppressiveness, unreasonableness or unjustness of certain aspects of the proposed rule under section 142 of the Act. These concerns related to the broad power given to the National Executive Committee, the exclusion of legal representation during investigations, the ambiguity of the rule's interaction with existing disciplinary rules, and the lack of specification of potential consequences for members subject to the rule. After considering the submissions from the National Secretary of the CFMEU, the Commission was satisfied that the proposed rule, when interpreted and applied in accordance with the principles of natural justice and procedural fairness, did not impose conditions, obligations, or restrictions that were oppressive, unreasonable or unjust. The Commission certified the alteration, noting that the rule would promote accountability and transparency within the CFMEU.

Orders