Construction, Forestry, Mining and Energy Union - [2013] FWCD 4210

[2013] FWCD 4210

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Construction, Forestry, Mining and Energy Union
(R2013/122)
MR ENRIGHT	MELBOURNE, 19 DECEMBER 2013
Alteration of other rules of organisation.

[1] On 20 June 2013, the Construction, Forestry, Mining and Energy Union (the CFMEU) lodged with the Fair Work Commission (the Commission) a notice and declaration

setting out particulars of alterations to the National rules of the CFMEU (the National

Rules).

[2] The particulars set out alterations to existing rule 5 and proposed new rules 22A, 24A, 24B, 24C, 24D, 50A, 50B, 50C, 50D and 51A. The alterations were made for the purpose of complying with provisions of the Fair Work (Registered Organisations) Amendment Act 2012 (the Amendment Act). In particular, the alterations provide for specified disclosures, the implementation of policies relating to expenditure and the mandatory training of officers with duties that relate to the financial management of the organisation and its branches.

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

[4] For the purposes of determining whether the alterations comply with the Amendment Act, it is necessary to consider the structure of the CFMEU. The CFMEU is divided, in the first instance, into seven state-based Branches (the State Branches) established pursuant to rule 28 of the National rules. Reflecting its history as an amalgamated organisation, the CFMEU is also divided into three Divisions (the Divisions), namely, the Forestry, Furnishing, Building Products and Manufacturing Division, the Mining and Energy Division and the Construction and General Division established pursuant to rules 27 and 42 of the National rules. Each Division possesses its own set of Divisional Rules (the Divisional

Rules) and is divided into several Divisional or District Branches or Districts determined on a

geographical or industry/occupational basis (the Divisional/District Branches/Districts) established in accordance with rule 27 of the rules of the CFMEU and the provisions of the relevant Divisional Rules.

[5] The relevant provisions of the Amendment Act provide that the rules of an “organisation” and the rules of a “branch” must require particular specified disclosures to be made, the development and implementation of policies relating to expenditure and the mandatory training of officers whose duties include duties that relate to the financial management of the organisation or branch. The proposed rules 22A, 24A, 24B, 24C, and 24D include references to “the Union”; proposed rules 50A, 50B, 50C, 50D and 51A include

[2013] FWCD 4210

references to “the Branch”. All the proposed rules represent alterations to the National rules of the organisation. The first issue that arises in the present matter is whether rules which purport to apply the required provisions to all parts of the organisation, including its branches however described, namely, the National rules, may be said to reflect the reference of the Amendment Act to both the “rules of the organisation” and the “rules of the branch”. The second issue, if the first is resolved in 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 [2013] FWCD 4210
Case: [2013] FWCD 4210
Decision Date: 19 December 2013

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval from the Fair Work Commission to alter its National Rules to comply with the Fair Work (Registered Organisations) Amendment Act 2012. The proposed alterations sought to implement specified disclosures, expenditure policies, and mandatory training for officers involved in financial management. The legal issues before the court were whether the proposed rules adequately reflected the requirements of the Amendment Act and whether they applied appropriately to both the organisation and its branches.

The court found that the CFMEU's structure, comprising state-based Branches and Divisions, necessitated a broad interpretation of the term "Union" to include all parts of the organisation. The proposed rules in the National Rules were deemed to apply to all divisions and branches unless there was a clear inconsistency. The court further determined that the proposed rules satisfied the requirements of the Amendment Act by ensuring that the rules applied to both the organisation and its branches, and by encompassing the necessary provisions for disclosure and training.

After reviewing the proposed rules and the CFMEU's response to the Commission's comments, the court certified that the alterations complied with the Act and other relevant laws. The court also approved a minor correction to a typographical error in the proposed rules. The alterations will take effect on 1 January 2014, as per the commencement date of Part 2 of Schedule 1 to the Amendment Act.

The court certified the alterations under subsection 159(1) of the Fair Work (Registered Organisations) Act 2009, confirming their compliance with the Act and other relevant legislation.

Orders