Construction, Forestry, Mining and Energy Union; Maritime Union of Australia; Textile, Clothing and Footwear Union of Australia
[2017] FWC 4353
•31 AUGUST 2017
| [2017] FWC 4353 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
s.44(1) RO Act - Application for approval for submission of amalgamation to ballot
s.46 RO Act - Application for exemption from the requirement that a ballot be held in relation to the amalgamation
s.47 RO Act - Application for an approval of a proposal for the submission of the amalgamation to a ballot that is not conducted under s.65 RO Act
Construction, Forestry, Mining and Energy Union; Maritime Union of Australia; Textile, Clothing and Footwear Union of Australia(D2017/5)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 31 AUGUST 2017 |
Applications by Construction, Forestry, Mining and Energy Union, The Maritime Union of Australia and Textile, Clothing and Footwear Union of Australia
[1] By their application lodged on 20 June 2017, the Construction, Forestry, Mining and Energy Union (CFMEU), Maritime Union of Australia (MUA) and Textile, Clothing and Footwear Union of Australia (TCFUA) (collectively “Applicants”) apply under s.44(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act) for the approval for submission of amalgamation to ballot. Attached to the application (principal application) was a copy of the Scheme for the Amalgamation (Scheme), a Written Outline of the Scheme, annexures and several statements in support of the principal amalgamation and each proposed alternative amalgamation.
[2] The Committees of Management of the CFMEU, MUA and TCFUA have by resolution approved the Scheme, the Written Outline of the Scheme, annexures and the statements in support of the principal amalgamation and each proposed alternative amalgamation.
[3] The name of the proposed amalgamated organisation is the Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU).
[4] In addition to the principal application, the CFMEU applies pursuant to s.46 of the RO Act for an exemption from the requirement that a ballot of its members be held in relation to the amalgamation. The TCFUA applies pursuant to s.47 of the RO Act seeking that a ballot for certain of its members not be conducted under s.65 of the RO Act if the submission of the amalgamation to ballot is approved.
[5] On 4 August 2017, the Applicants made an oral application to amend or correct the Scheme pursuant to s.586 of the Fair Work Act 2009 (FW Act) as a consequence of two recent decisions of the General Manager of the Commission, Ms Bernadette O’Neill to consent to alterations to the eligibility rules of the CFMEU. 1 On 10 August 2017, the Applicants lodged that which is described as a corrected Scheme and annexures to the Scheme. The corrected Scheme is said to correct the proposed eligibility rules of the CFMMEU to take into account the General Manager’s decisions to consent to alterations to the CFMEU eligibility rules, to which reference above has been made. The eligibility rule alterations consequent on the amalgamation were to be found in rules 2(P) and 2(Q) of the Scheme. The Applicants now seek to correct or amend that numbering to 2(R) and 2(S) and to insert the CFMEU eligibility rule alterations noted above as numbered 2(P) and 2(Q) respectively.
[6] The Australian Mines and Metals Association (AMMA) and Master Builders Australia (MBA) oppose the approval for submission of amalgamation to ballot on the basis of the application’s validity. 2 AMMA and MBA sought leave to make submissions in support of their jurisdictional objection and I considered that such submissions would be helpful in informing me in relation to the matter. I granted permission, or perhaps more properly, I invited AMMA and MBA to make submissions pursuant to s.590(2)(c) of the FW Act. Similarly, the Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers Union (AMOU) sought leave to make submissions pursuant to s.54(3) of the RO Act and I granted permission.
[7] Before turning to the substantive applications, I propose to deal with AIMPE and AMOU’s submissions and the application by the Applicants to amend or correct the Scheme.
Proposed amalgamation name
[8] AIMPE and AMOU oppose the approval for submission of amalgamation to ballot on the ground that the proposed alteration to the name of the Construction, Forestry, Maritime, Mining, and Energy Union will result in that organisation having a name that is “so similar to the names of the AIMPE and/or the AMOU so as to be likely to cause confusion”. 3 They say that there is no absence of confusion, as required by s.53(1)(c) of the RO Act. They submit that the use of “Maritime” in the proposed name “Construction, Forestry, Maritime, Mining and Energy Union” “in the absence of any limitation to certain occupations and/or callings, leads to confusion”.4 They submit that that there may exist, for the time being, an organisation called the Maritime Union of Australia is irrelevant to the consideration pursuant to s.53(1)(c) of the RO Act. The focus of the RO Act is on the “proposed alteration of the name of an existing organisation”.5
[9] AIMPE and AMOU submit that while traditionally the test of confusion was seen to be applied to the organisation’s name as a whole, that industrial jurisprudence predated the emergence of unions such as the CFMEU that cover not just multiple trades and callings, but multiple industries. AIMPE and AMOU say that the divisional structure of both the CFMEU, and the proposed CFMMEU, supports a divisional consideration of the confusion. 6 They say that the broad term “Maritime” in the proposed CFMMEU name, “in the absence of a limitation to occupations and/or callings, leads to confusion”.7 The AMOU name contains the occupational limitation of “Officers”. That confusion exists from the use of the broad term “Maritime”, “in the absence of limitations to particular occupations and/or callings”.8 They rely on the statement of Mr Samuel Littlewood, National Organiser of AIMPE to make good their point.9
[10] Mr Littlewood is responsible for representing AIMPE members employed by Harbour City Ferries (HCF) in Sydney. His evidence is that there are currently two enterprise agreements which cover the work of ferries operation staff at HCF. The Harbour City Ferries Maritime Agreement 2015 (Maritime Agreement), covers Inner and Outer Harbour Masters, Inner Harbour Engineers, and General Purpose Hands. The Harbour City Ferries Outer Harbour Engineers’ Agreement 2014 (Outer Harbour Agreement) which exclusively covers the employment conditions of Outer Harbour Engineers. 10 The Outer Harbour Agreement was negotiated between AIMPE and HCF. Mr Littlewood’s evidence is that AIMPE was the sole employee bargaining representative for this agreement at the time it was made.11 His evidence is that this was due to the employees engaged as Outer Harbour Engineers being exclusively AIMPE members at the time of bargaining.12
[11] His evidence is that historically in terms of operational coverage, the AIMPE has represented ferry Engineers, the AMOU has represented ferry Masters and the MUA has represented General Purpose Hands. 13
[12] The relevant marine engineering qualification required to become an Outer Harbour Engineer has meant that AIMPE has had exclusive coverage of Outer Harbour Engineers employed by HCF, and its predecessor, Sydney Ferries. 14 His evidence is that between July and October 2014, 7 Outer Harbour Engineers employed by HCF resigned from AIMPE and signed up as members of the MUA.15 His evidence is that he came across a document which stated “Consistent with the rules of the Maritime Union of Australia, we can cover “employees working on river and harbour vessels, including ferries”. Members will note that this does not limit the scope of our coverage to merely deckhands”.16 Mr Littlewood’s evidence is that at no time prior to 2016 had the MUA represented the industrial interests of Outer Harbour Engineers employed by HCF, or its predecessor Sydney Ferries and that at no time prior to 2016 did the MUA have, as its members, individuals employed as Outer Harbour Engineers by HCF, or its predecessor Sydney Ferries.17
[13] AIMPE and AMOU submit that the particular confusion relates to the absence in the proposed name from any designation of a particular industry or calling relating to the maritime descriptor. 18
[14] AIMPE and AMOU say that if the proposed alternate name of the organisation be the “Construction, Forestry, Maritime (Integrating Ratings), Mining and Energy Union” instead of that proposed by the Applicants, the concerns of AIMPE and AMOU would be resolved. However, use of the term “Maritime” unencumbered by an occupational or callings limitation, in the proposed name describes an industry which is equally appropriate to other existing organisations, namely AIMPE and AMOU. 19
[15] Mr Littlewood’s evidence, though interesting, is of little assistance in resolving this issue. Primarily, this is because it is framed to support the construction of s.55(1)(c) of the RO Act favoured by the AIMPE and AMOU but for reasons which follow, I reject.
[16] A similar submission to that now advanced by AIMPE and AMOU was made by AIMPE in Merchant Service Guild of Australia and The Australian Stevedoring Supervisors Association. 20 That decision concerned an application to the then Australian Industrial Relations Commission (AIRC) by the Merchant Services Guild of Australia and the Australian Stevedoring Supervisors Association under s.242 of the Industrial Relations Act 1988 (IR Act) for the approval for the submission of the proposed amalgamation of the two organisations to a ballot in accordance with the IR Act. One of the matters about which the AIRC was required to be satisfied set out in s.252(1)(c) of the IR Act was:
“that any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion”.
[17] The corresponding provision found in s.55(1)(c) of the RO Act currently provides that the Commission must be satisfied that:
“any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion”.
[18] It is apparent from the above that the two provisions are materially the same.
[19] The Applicants say that the construction of s.252(1)(c) of the IR Act determined in Merchant Service Guild of Australia and The Australian Stevedoring Supervisors Association is apposite to s.55(1)(c) of the RO Act. Consequently, the alteration to the name of the CFMEU consequent upon the proposed amalgamation will not result in the organisation having a name of another organisation or so similar to the name of another organisation as to be likely to cause confusion. 21
[20] In Merchant Service Guild of Australia and The Australian Stevedoring Supervisors Association, Deputy President Williams opined as follows:
“AIMPE’s argument in opposition to the proposed name primarily relies upon a particular interpretation of s.252(1)(c), one which on the plain wording of the sub-section I am unable to accept. The argument, as I understand it, is that if a proposed name is likely to cause confusion, then it is to be treated as having the requisite degree of similarity for the purposes of the sub-section. That, in my view, is a ‘cart before the horse’ argument. Properly analysed, the sub-section requires firstly similarity between the proposed name and that of another organisation and secondly, once the existence of such similarity is ascertained, then a degree of similarity that is likely to cause confusion.” 22
[21] The first part of s.55(1)(c) is not in contention as it is clear that the proposed alteration to the name of the CFMEU will not result in the organisation having the same name as another organisation. It seems to me that the relevant question is whether the “name” being proposed is so similar to the name of another organisation as to be “likely” to cause confusion. The Applicants submit that in this instance the name CFMMEU is not similar whatsoever to the name of either AIMPE or AMOU. 23 They say that given there is no similarity then there can be no confusion.24
[22] They say that AIMPE and AMOU’s argument should fail as the first hurdle has not been met. 25
[23] I consider that the Deputy President’s consideration of s.252(1)(c) of the IR Act is plainly correct. There has been no cogent reason advanced which would suggest that the construction should not pertain to s.55(1)(c) of the RO Act. Indeed the Parliament in adopting the language of s.55(1)(c), which in all material respects is the same as the language considered in Merchant Service Guild of Australia and The Australian Stevedoring Supervisors Association, is presumed to have been aware of the decision, and could have but did not, depart from the language construed. In particular, had the Parliament thought fit to alter the industrial jurisprudence having regard to the emergence of conglomerate unions covering multiple trades and callings, operating across various industries and comprising of multiple divisional structures, then it would likely have done so in express language. But that has not, to date, occurred. I therefore respectfully adopt the Deputy President’s analysis as applicable to s.55(1)(c) of the RO Act. I agree with and adopt the Applicants’ submissions recounted in [19] – [21] above. I am therefore satisfied that the proposed alteration to the name of the CFMEU is not so similar to that of another organisation as to be likely to cause confusion. Therefore, the objection raised by AIMPE and AMOU is rejected.
Amended/corrected Scheme
[24] AMMA and MBA submit that the Commission has no power under s.586 of the FW Act to alter the scheme. They submit that it is necessary for the Applicants to themselves alter the scheme by resolution of their respective Committees of Management pursuant to s.42(1) of the RO Act. 26
[25] AMMA and MBA advance four reasons for their contention that s.586 does not permit the Commission to alter the Scheme as requested by the Applicants. 27 First, that which the Applicants propose is not only the ‘correction’ of a document. They say that it relieves the substantive requirement imposed by s.42(1) that “each alteration” of a scheme must be approved by the relevant Committees of Management. They submit that this is outside the scope of s.586. Further, they say that the proposed ‘correction’ is not akin to a typographical error or a slip, but effects a substantive change to the eligibility rules.28
[26] Secondly, they say that the general power in s.586 must yield to the specific provisions in the RO Act that deal with alterations to the scheme, in particular s.42(1), which require any alteration to a scheme to be approved by a resolution of the relevant Committees of Management and therefore not the Commission. 29
[27] Thirdly, AMMA and MBA say that the context provided by Chapter 3 of the RO Act, when read as a whole, demonstrates an ongoing concern that a scheme for amalgamation, including any alteration thereof, be approved by the Committees of Management of the organisations concerned. They submit that the evident purpose is to ensure that each and every provision of a scheme, being an instrument that may become binding on those organisations, was truly authorised by them. The proposed ‘correction’ is inconsistent with this purpose, because it would permit a ballot upon a scheme that has never been properly approved. 30
[28] Lastly, they submit that the outcome would also be inconsistent with the approach taken by the Commission in my decision in Brockman Engineering Pty Ltd. 31 There, an application for variation of an agreement failed to comply with s.210 of the FW Act because it was not accompanied by a signed copy of the agreement. In support of a request to correct or amend the application under s.586, the applicant filed a corrected copy of the agreement that had been lawfully signed. In this case, I determined that the Commission had the power to allow a correction to the application and, with reference to the corrected copy of the agreement, concluded that: “the variation agreement was therefore signed appropriately with the result that there is now a valid application under s.210 of the Act”.32AMMA and MBA say that in the present case, the equivalent approach would require the application under s.586 to be accompanied by an authorising resolution by each of the relevant Committees of Management.33
[29] The Applicants say that they do not propose to alter anything in the Scheme. They submit that it is open to the Commission to make a correction under s.586 of the FW Act as the Applicants intend to correct the documents. 34 They submit that they propose to “correct” the Scheme to reflect what has happened in the Commission between the time the application was made and the time that the application was heard on 4 August 2017.35 The Applicants submit that there are other options than that put by AMMA and MBA.
[30] The Applicants submit that pursuant to s.36(3) of the RO Act, a difficulty arises. 36 They say that a difficulty arises in the circumstances of the approval of the alteration of the rules in that period between the Scheme being approved by the Committees of Management and the hearing of those applications. They say that given a difficulty arises, it is open to the Commission to make directions and orders to resolve that difficulty.37 They submit that a direction that the documents annexed to the Scheme and the references to the CFMEU rules in the Scheme be updated to reflect the rules as altered by the Commission, would be an appropriate direction.38
[31] AMMA and MBA say that s.36 of the RO Act is not apt to deal with this use for two reasons. 39 They say that it is not correct to call the failure to approve the Scheme by the relevant Committees of Management, a difficulty. They say that even if that was the case and it was a difficulty, s.36(4) says that those types of orders can have the effect, despite the regulations or rules of the Commission or the rules of an organisation or association, proposed to be registered organisation. They say what you cannot do is use the general power in s.36, the same way as you cannot use the general power in s.586 of the FW Act to override the clear requirements in s.42 of the RO Act that each alteration of the scheme must be approved by the Committee of Management.40
[32] The Applicants submit that the other option available to the Commission is under s.55 of the RO Act. They submit that the Commission could accept an undertaking from the Applicants, that before a given date they would each convene a meeting with their respective Committees of Management to consider the corrected/amended scheme to take into account the two decisions of the General Manager approving the rules and indicate they that approve the alteration and correction to the Scheme. 41 The Applicants submit that this is the preferred course.42
[33] During the hearing on 17 August 2017, the Applicants gave the following undertaking:
“The CFMEU, MUA and TCFUA undertake to, by 28 August 2017 put the scheme of amalgamation corrected to reflect the rules of the CFMEU as altered by the General Manager of the Fair Work Commission in the decisions dated 25 July 2017 and 3 August 2017 to their respective Committee of Managements for their approval by resolution.” 43
[34] AMMA and MBA say that under s.55(3) of the RO Act, the Commission needs to be in a position in which it “would be required to refuse to approve” the submission of the amalgamation to ballot before it can accept the undertaking. 44 This is manifestly correct having regard to the plain text of s.55(3). I will return to this later in this decision.
[35] Section 40 of the RO Act provides as follows:
“40 Scheme for amalgamation
(1) There is to be a scheme for every proposed amalgamation.
(2) The scheme must contain the following matters:
(a) a general statement of the nature of the amalgamation, identifying the existing organisations concerned and indicating:
(i) if one of the existing organisations is the proposed amalgamated organisation—that fact; and
(ii) if an association proposed to be registered as an organisation is the proposed amalgamated organisation—that fact and the name of the association; and
(iii) the proposed de-registering organisations;
(b) if it is proposed to change the name of an existing organisation—particulars of the proposed change;
(c) if it is proposed to alter the eligibility rules of an existing organisation—particulars of the proposed alterations;
(d) if it is proposed to alter any other rules of an existing organisation—particulars of the proposed alterations;
(e) if an association is proposed to be registered as an organisation—the eligibility and other rules of the association;
(f) such other matters as are prescribed.
(3) Subsection (2) does not limit by implication the matters that the scheme may contain.”
[36] The Scheme as lodged by the Applicants appears to be the totality of the material contained in Exhibit 1 tendered by the Applicants during the hearing on 4 August 2017. 45 It seems arguable that on their face, the amendments or corrections proposed by the Applicants by updating the proposed rules of the CFMMEU to take into account the earlier mentioned decisions of the General Manager, amount to an alteration of the Scheme. However, I consider the better view to be that Exhibit 1 contains particulars of the proposed alterations to the eligibility rules of an existing organisation, namely the CFMEU, consequent upon the proposed amalgamation by reference to their place in the overall existing rules of the CFMEU. To this end, it was not necessary for the Applicants to reproduce in the Scheme the existing rules of the CFMEU which were not to be altered by reason of the proposed amalgamation. Save for rule numbering, the incorporation of the alteration of the eligibility rules of the CFMEU by reason of the General Manager’s decisions to give consent, do not on their face have a bearing on the particulars of the proposed alterations that are consequent upon the amalgamation. Thus, the particulars of the proposed alterations are not to be amended, save in the most inconsequential of ways, namely the numbering of the proposed eligibility rules giving effect to the amalgamation. In this respect the proposed alteration is properly described as a “correction … of any … other document relating to a matter before the Commission” and would likely be amenable to the correction under s.586 of the FW Act. This is so notwithstanding s.36(2) of the RO Act because in my opinion that provision is not concerned with technical corrections but rather with acts undertaken for the purpose of a proposed amalgamation of the kind therein described.
[37] However, as events have transpired, I need not decide the issue as the correction, if it be an alteration to the Scheme has been appropriately approved. Section 42 of the RO Act provides:
“42 Approval by committee of management
(1) The scheme for a proposed amalgamation, and each alteration of the scheme, must be approved, by resolution, by the committee of management of each existing organisation concerned in the amalgamation.
(2) Despite anything in the rules of an existing organisation, approval, by resolution, by the committee of management of the scheme, or an alteration of the scheme, is taken to be sufficient compliance with the rules, and any proposed alteration of the rules contained in the scheme, or the scheme as altered, is taken to have been properly made under the rules.”
[38] That section contemplates an alteration of a scheme of amalgamation subject to the satisfaction of the preconditions set out therein.
[39] During the hearing on 17 August 2017 the following exchange recorded in transcript took place:
“MR WOOD: I'm being helpful. It's not right to call the failure to approve the scheme by the relevant committees of management, a difficulty. Even if that was the case and it was a difficulty, you can see in subsection (4) of section 36 that those types of orders can have effect, despite the regulations or rules of the Commission or the rules of an organisation or association, proposed to be registered as an organisation.
What you can't do is use the general power in section 36, the same way as you can't use the general power in section 586 of the Fair Work Act to override the clear requirement in section 42 that each alteration of the scheme must be approved by the Committee of Management.
Lastly, the idea that you can rely upon section 55, is similarly fraught, for the very reason that you identify, Deputy President. We were going to raise it but you came to it first. Why is it that but for the alteration, you would be required to refuse to approve the submission of the amalgamation to ballot. You have to find that you'd be required to refuse to approve the submission to the amalgamation to ballot, before you can accept the undertaking. We can't see why you'd be able to form that view.
THE DEPUTY PRESIDENT: Yes, I understand that. Mr Wood, just again to be clear, in the event that the respective Committee of Managements of each of the organisations that are applicants approve the amendments/alteration at meetings on or about 27 or 28 August, then subject to anything else, that resolves that issue.
MR WOOD: I don't think - assuming that was done properly, and there is sufficient evidence of it.
THE DEPUTY PRESIDENT: Yes, on the assumption of all of those things, yes.
MR WOOD: Then we couldn't see how we could be heard further on this point.
THE DEPUTY PRESIDENT: Anything else, Mr Wood?
MR WOOD: No, Deputy President.” 46
[40] The respective National Secretaries of the CFMEU, MUA and TCFUA each filed a statement concerning the approval of the amendment to the Scheme and the authorising meetings conducted by their organisations.
[41] Mr Michael O’Connor, National Secretary of the CFMEU conducted a meeting with members of the National Executive on 21 August 2017. 47 The Executive at its meeting resolved that a resolution was to be put to the members of the National Executive by email vote.48 On 25 August 2017, Mr O’Connor forwarded to members of the National Executive an email advising that the members voted in support of the circular resolution.49 The following resolution was passed:
“The National Executive notes the two recent Decisions of the Fair Work Commission dated 25 July and 3 August 2017 altering the current eligibility rule of the Union.
The National Executive of the Construction, Forestry, Mining and Energy Union (Union) hereby resolves having regard to Rule 41 of the National Rules TO APPROVE the Scheme for Amalgamation of the proposed amalgamation between the Union, The Maritime Union of Australia (MUA) and the Textile, Clothing and Footwear Union of Australia (TCFUA) as circulated, including the proposed alternative amalgamation between the Union and the MUA and the proposed alternative amalgamation between the Union and the TCFUA (Scheme), as well as the relevant Rule alterations contained in the Annexures of the Scheme.” 50
[42] Mr Padraig Crumlin, National Secretary of the MUA summoned a special meeting of the National Council to be held at 10.30am on 24 August 2017. 51 At the meeting, the National Council passed the following resolution:52
“The National Council notes the two recent Decisions of the Fair Work Commission dated 25 July 2017 and 3 July 2017 altering the current eligibility rule of the Construction, Forestry, Mining and Energy Union.
National Council of The Maritime Union of Australia (Union) hereby resolves having regard to Rules 4(o) and 15(c) of the Rules of the Union TO APPROVE the Scheme for Amalgamation of the proposed amalgamation between the Construction, Forestry, Mining and Energy Union, the Union and the Textile, Clothing and Footwear Union of Australia as circulated, including the proposed alternative amalgamation between the Construction, Forestry, Mining and Energy Union and the Union (Scheme) as well as the relevant Rule alterations contained in the Annexures of the Scheme.”
[43] Ms Michele O’Neil, National Secretary of the TCFUA conducted a meeting by telephone on 18 August 2017 with members of the National Executive. 53 The National Executive met by telephone on 21 August 2017 and resolved at the meeting as follows:
“The National Executive notes the two recent Decisions of the Fair Work Commission dated 25 July 2017 and 3 July 2017 altering the current eligibility rule of the Construction, Forestry, Mining and Energy Union.
National Executive resolves that the corrected Scheme of Amalgamation as circulated resulting from the Decisions should be subject of approval of a meeting of the National Council to be held by telephone” 54
[44] On the same day a meeting was called with members of the National Council. At the meeting the Council was resolved as follows:
“The National Council notes the two recent Decisions of the Fair Work Commission dated 25 July 2017 and 3 July 2017 altering the current eligibility rule of the Construction, Forestry, Mining and Energy Union.
National Council of The Textile, Clothing and Footwear Union of Australia (TCFUA) hereby resolves having regard to Rules 22(a) and 65 of the Rules of the TCFUA TO APPROVE the Scheme of Amalgamation of the proposed amalgamation between the Construction, Forestry, Mining and Energy Union, The Maritime Union of Australia and the TCFUA as circulated, including the proposed alternative amalgamation between the Construction, Forestry, Mining and Energy Union and the TCFUA (Scheme), as well as the relevant Rule alterations contained in the Annexures of the Scheme.” 55
[45] The materials filed by the Applicants were uploaded to the designated Commission website page for the amalgamation proceeding. No party has sought to be heard further on this issue.
[46] I am satisfied that the alteration to the Scheme, if it be an alteration, has been approved by resolution by the Committee of Management of each existing organisation concerned in the amalgamation in accordance with s.42(1) of the RO Act. To this end I note the deeming provision in s.42(2) of the RO Act.
[47] The Scheme for the proposed amalgamation therefore includes the alteration to the eligibility rules of the CFMEU to which the General Manager has consented in the earlier referred to decisions together with a renumbering of the proposed alteration to the eligibility rules of the CFMEU consequent upon the amalgamation.
[48] I have given some consideration to whether the alteration or correction could be dealt with in accordance with the procedure envisaged by s.55(2) – (4) which provides as follows:
“55 Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.
…
Approval generally refused if conditions not satisfied
(2) If the FWC is not satisfied, the FWC must, subject to subsections (3) and (7), refuse to approve, under this section, the submission of the amalgamation to ballot.
Approval may be given if conditions will be satisfied later
(3) If, apart from this subsection, the FWC would be required to refuse to approve the submission of the amalgamation to ballot, the FWC may:
(a) permit the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation; or
(b) accept an undertaking by the applicants to alter the scheme for the amalgamation, including any proposed alterations of the rules of the existing organisations concerned in the amalgamation;
and, if the FWC is satisfied that the matters mentioned in subsection (1) will be met, the FWC must approve the submission of the amalgamation to ballot.
Permission to alter amalgamation scheme
(4) A permission under paragraph (3)(a):
(a) may, despite anything in the rules of an existing organisation concerned in the proposed amalgamation, authorise the organisation to alter the scheme (including any proposed alterations of the rules of the organisation) by resolution of its committee of management; and
(b) may make provision in relation to the procedure that, despite anything in those rules, may be followed, or is to be followed, by the committee of management in that regard; and
(c) may be given subject to conditions.”
[49] However, I am of the view that the procedure is not available to me in the circumstances. The introductory words “[I]f the FWC is not satisfied . . .” in s.55(2) is a reference to satisfaction of the matters enumerated in s.55(1). Section 55(3) appears to me to operate in a manner that is intended to cure any defect in the matters to which reference is made in s.55(1). So much is clear from the concluding words “and, if the FWC is satisfied that the matters mentioned in subsection (1) will be met . . .” The alteration or correction to the Scheme does not in my view engage any of the matters enumerated in s. 55(1) of the RO Act about which satisfaction is required. In any event, for the reasons given above it seems to me unnecessary to have recourse to that procedure, even if it were available.
The Applications
[50] I turn now to the question whether there should be approval for submission to ballot of the amalgamation and to the related issues whether the applications by the CFMEU under s.46 (Ballot Exemption) and the TCFUA under s.47 (Ballot conducted other than in accordance with s.65) of the RO Act should be granted.
[51] During the hearing on 4 August 2017 Mr Slevin, Counsel for the Applicants helpfully addressed each of the relevant statutory requirements so far as they concern the three applications. It is appropriate that I set them out in full below:
“MR SLEVIN: Thank you, your Honour. The applications that are made today are in relation to an amalgamation that's proposed by my clients, the CFMEU, the MUA and the TCFUA. The CFMEU is the proposed amalgamated organisation. The MUA and the TCFUA will be merged with the CFMEU and the proposed deregistering unions or deregistering organisations. The parties have agreed that if members of one of the deregistering organisations do not approve the amalgamation then the other two will nonetheless amalgamate. These are the alternative proposals in the scheme.
For today's purposes there are three applications under chapter 3 of the Registered Organisations Act. There's the section 44 - - -
THE DEPUTY PRESIDENT: Save that there's no alternative proposal for an amalgamation merely between the MUA and the TCFUA which I assume is because - or a link to your application not to conduct a ballot in respect of the CFMEU.
MR SLEVIN: Yes, that's right.
THE DEPUTY PRESIDENT: Yes.
MR SLEVIN: And also that the scheme has taken up a proposed amalgamated - the CFMEU is the proposed amalgamation organisation - - -
THE DEPUTY PRESIDENT: Yes, I understand.
MR SLEVIN: - - - organisation, your Honour, which has an impact on the alternative scheme as well.
THE DEPUTY PRESIDENT: Yes.
MR SLEVIN: So the first application is a section 44 joint application made by all three of the unions for approval for the submission of the proposed amalgamation to ballot. The second application is a section 46 application by the CFMEU for exemption from the requirement that a ballot of its members be held.
And the third application is the section 47 application for a combined postal and attendance ballot by the for certain - or for the members of the TCFUA. There's also a notification by the TCFUA that the union has chosen to use an alternative ballot paper. That's something that I just note. It's not an application, as it were. It's a notice filed with the application.
The application - or the documents that are filed, your Honour, I think given the way this part of the Act works there's lots of interaction between various sections, you will have noticed.
THE DEPUTY PRESIDENT: Yes, it's not the most well-constructed piece of legislation I've encountered.
MR SLEVIN: No, and indeed it can be difficult to follow. The way I proposed to deal with it, your Honour, given that there are a limited number of matters that you need to be satisfied of in section 55, was first to describe the application by reference to the documents filed and then take you to the relevant provisions of the Act following that and then ultimately to section 55. So that's the format that I propose to take in taking you through the applications.
And so you'll see that filed with the application is a copy of the scheme and the - it's a very large document and the scheme contains a number of annexures as well. So the first is the - and I think it's probably appropriate that I tender the scheme, your Honour, with its seven annexures. And so I tender the scheme of amalgamation filed with the application under section 44 of the Act dated 20 June 2017.
THE DEPUTY PRESIDENT: Just bear with me. Yes, so we'll mark the scheme of amalgamation between the Construction, Forestry, Mining and Energy Union and the Maritime Union of Australia and the Textile Clothing and Footwear Union of Australia, together with the annexures marked annexure A through G respectively, as exhibit 1.
MR SLEVIN: Now, the M1 - - -
THE DEPUTY PRESIDENT: They're not referred to in the scheme.
MR SLEVIN: I think what we have - I think the way it works is the alternative schemes which are at annexure A and B - - -
THE DEPUTY PRESIDENT: Yes, I see.
MR SLEVIN: - - - then refer to - and so I think I misled you there, your Honour. One, two, three, so - - -
THE DEPUTY PRESIDENT: That's all right. I'll just - to get - - -
MR SLEVIN: And then annexures M1 to M3 and MD1 and MD2.
THE DEPUTY PRESIDENT: Yes, all right.
MR SLEVIN: And your Honour, I - - -
THE DEPUTY PRESIDENT: Well, perhaps I'll deal with it this way, Mr Slevin. I will leave the scheme of amalgamation as is, that is, marked as exhibit 1. I'm just trying - well, no, it becomes messy, doesn't it, because annexures A and B are part of the scheme. So - all right. Well, we'll amend the record to indicate that the exhibit 1 is the scheme of amalgamation as earlier indicated together with the annexures marked annexure A to annexure G together with annexures marked M1, M2, M3 and MD1 and MD2. That will be exhibit 1.
MR SLEVIN: And just for the purpose of the record I'll describe exhibit 1, your Honour, because it becomes relevant when I start talking about the requirements of the Act. You'll see that the scheme itself sets out in the introduction the nature of the scheme, describes the parties, then provides an overview of the scheme.
The name is specified at paragraph 7 of the scheme. The assets and liabilities of the organisations are dealt with at paragraphs 8 to 13. The question of eligibility for membership is described on page 4 at paragraphs - from paragraphs 14 to paragraph 17. The structures to be introduced in the proposed amalgamated organisation are described at page 5 and onwards in paragraphs 18 to 20.
And the identification of the various offices in the amalgamated organisation or proposed amalgamated organisation take up a number of pages, you'll see, your Honour, and that are all set out there in detail identifying those offices by description in column A, and then their positions and divisions in column B, and then at column C the date at which the office will end.
Elections are dealt with at paragraph 21 on page 16, general principles for the amalgamation at paragraph 22. The impact on staff of the MUA and TCFUA are described at paragraph 23. The rules of the amalgamated organisation is covered in paragraph 24 which is page 17 by reference to some of the annexures and I'll go to those in a moment.
The question of existing agreements and understandings is dealt with in paragraph 26. Description of the scheme arrangements and the amalgamation provisions of the Act at paragraphs 27 and 28. And the differences between the proposed principal amalgamation and the proposed alternative amalgamation between the CFMEU and the MUA is dealt with at paragraph 29. And the differences between the proposed principal amalgamation and the proposed alternative amalgamation between the CFMEU and the TCFUA in the last paragraph of paragraph 30. So that's the nature of the scheme.
The annexures which are referred to throughout the scheme include the proposed alternative scheme for amalgamation between the CFMEU and the MUA which is annexure A. Annexure B is the proposed alternative scheme for amalgamation for the CFMEU and the TCFUA. I won't take you to those in the same way, your Honour, but you can see on the face of those documents that they also cover the various matters required under the Act in a similar way to the main scheme.
Annexure C is the proposed national rules of the amalgamated organisation. Annexure D is a marked up copy of that same document. By marking it up the scheme provides the particulars of the changes to the CFMEU national rules, and in particular relevant to some discussions this morning, the nature of the changes to eligibility rules and constitution rules, and they show that there are no changes.
Annexure E is the new MUA divisional rules which goes to the proposed new structure and provides for divisional rules for those moving over from the MUA. Annexure F goes to the new manufacturing divisional rules, which takes up those moving over from the TCFUA. Annexure G is a marked up copy of the manufacturing division rules providing particulars of the changes to the rules of the former divisional rules, or I should say the current divisional rules for the CFMEU forestry, furnishing, building products and manufacturing division.
The other annexures relate to the alternative amalgamation schemes, M1 relating to the amalgamation between the CFMEU and the MUA, which is in tab A or annexure A. It's the proposed national rules in that alternative scheme. M2 is a marked up version of the proposed national rules for that alternative scheme, providing the particulars of how the rules will change. M3 is the MUA divisional rules that would apply under that alternative scheme. MD1 and MD2 relate to the other alternative scheme, and that being the amalgamation between the CFMEU and the TCFUA. That's the alternative scheme described at annexure B to the scheme. MD1 is the proposed national rules for that alternative, and MD2 is the proposed national rules marked up and thereby providing particulars of the changes to the rules arising from that alternative scheme.
Your Honour, there's a matter that I need to address in relation to the scheme arising from recent decisions of the General Manager of the Fair Work Commission, Ms O'Neill, that has had an impact on the rules of the CFMEU. What we ask here, your Honour, is for you to exercise your power under section 586 of the Fair Work Act to correct a document, and the document that you're correcting is the scheme for amalgamation. The correction is necessary because as a result of these decisions the General Manager has granted applications made by the CFMEU on 14 July 2016 to alter the rules of the CFMEU.
The consequences of that are that new rules have gone in at rule 2P and 2Q, so the annexures at C and D, M1 and M2 and MD and MD2 of the scheme will need to be corrected to reflect the rules as of the time, or as of today, and that the rules proposed for the amalgamation which are currently 2P and 2Q, so you will see that the new rules from the General Manager are 2P and 2Q. So 2P and 2Q - - -
THE DEPUTY PRESIDENT: So 2P and 2Q - where are we at, R and S now?
MR SLEVIN: That's right, and so that just becomes R and S, so it's just a correction to accommodate the decision of the General Manager.
THE DEPUTY PRESIDENT: It's not a Freudian slip, is it?
MR SLEVIN: I hope not. You will see that the second decision was only handed down yesterday, and Mr Pasfield sounds a cautionary note that some consideration may need to be given for consequential changes if there are references. In that respect we can provide you with any amended documents, but we expect the amendments to be minimal to reflect those corrections by the end of next week. So we ask that that correction be made to the scheme, your Honour.
THE DEPUTY PRESIDENT: Yes.
MR SLEVIN: As to the scheme and the Act subsection (2) of section 40 requires that it contain certain matters, and that's that there be a general statement of the nature of the amalgamation. I have taken you through the scheme and I won't trouble you by asking you to reopen the scheme, but you will see at pages 1 to 6 there's general statements of the nature of the amalgamation in the scheme. There's the overview as well that I drew your attention to, your Honour, and so that requirement is met.
At subparagraph (2)(a)(i) there's a requirement that the scheme indicate the proposed amalgamated organisation, and that's done at page 1 at paragraph 1 and the CFMEU is the proposed amalgamated organisation. Subparagraph (2) of section 40(2) paragraph (a) doesn't apply, it deals with associations being registered. Subparagraph (3) does, that the proposed deregistering organisations be identified, and that's done at page 1 of the scheme at paragraph (2), and the MUA and the TCFUA are the proposed registering organisations.
The requirement in section 40(2) paragraph (b), the particulars of the proposed name be provided, and that's at page 3 paragraph 7. I have already indicated that that name is the Construction Forestry Maritime Mining and Energy Union.
As to paragraph (c) there's no change in the eligibility rules, so it doesn't apply, and the rule changes are to be identified in the scheme, and that's paragraph (d) of subsection (2) of section 40, and those rule changes are identified in the manner I described to you as I took you through the annexures where a marked up copy of the rule is annexed as well to provide easy reference points to any changes arising from the proposed amalgamation.
Section 41 has some work to do in this application as well, in relation to this application as well. It allows for the alternative amalgamation provisions, and subsection (2) requires that the differences in the alternatives to be identified, and that is done in the same way by annexures A and B and annexures M1, M2, M3 and MD1 and MD2. So you can be satisfied that the scheme meets the description in section 41 as well so far as it deals with the alternative proposed amalgamations.
As to section 42, that's Mr Wood's point, in relation to that for current purposes without going to the question of whether this is some validity argument, you will see that - and you have already been taken to the statements filed with the application, and I think it's probably appropriate that I tender those now, your Honour. So first of all I tender the statement of Michael O'Connor, the National Secretary of the CFMEU, dated 20 June 2017 and filed with the application. I tender that on its own, your Honour.
The second statement that I tender is the statement of Mr Crumlin who is the MUA's National Secretary. That's the statement that is marked annexure B to the application and is also dated 20 June 2017. I tender that statement.
The third statement is the statement of Ms O'Neil, who is the National Secretary of TCFUA. That statement is marked annexure C to the application and is dated 20 June 2017.
Can I just draw your attention to Regulation 40 of the (indistinct) organisations regulations.
THE DEPUTY PRESIDENT: Yes.
MR SLEVIN: You will see that Regulation 40 requires that an application under subsection (44)(1) of the Act must - I will go through all of them:
Paragraph (a) be in writing, and (b) state the grounds for making the application, and (c) nominate one of the applicants as the applicant authorised to receive on behalf of the applicant's service of documents relating to the application or the proposed amalgamation and each proposed alternative amalgamation, and (d) be lodged with the FWC.
The purpose of taking you to this at this time was (e):
(e) be lodged with a copy signed by an authorised officer of the applicant whose committee of management passed it of each resolution under subsection (42)(1) of the Act relating to the proposed amalgamation.
The purpose of providing the statements is to meet the requirement in Regulation 40(e), and you can see on the face of the statements that indeed they do what is required by Regulation 40(1)(e) in that they provide, and the requirement in section 42(1) is that:
The scheme for a proposed amalgamation and each alteration of the scheme must be approved by resolution by the committee of management of each existing organisation concerned in the amalgamation.
You will see the format of exhibits 2, 3 and 4 being to identify the committee of management, the meeting at which the scheme was considered and the resolution that was passed in relation to the schemes, and so that's the requirement referred to in the regulation, and that these statements meet the requirement of 41(e) and that clearly goes to the validity of the argument that Mr Wood ran, but also in terms of setting out for you, your Honour, the application that I am describing. I make that point, but that's not to say I don't still need to get some instructions on that point.
THE DEPUTY PRESIDENT: No, I understand.
MR SLEVIN: Now, section 44(2) paragraph (b) requires that a written outline of the scheme also be filed with the application. A written outline was filed on the application on 20 June. It's an outline of 25 paragraphs and ten pages. I think I should tender that in the same way that I tendered the other documents filed, your Honour, so I tender the outline filed in accordance with section 44(2) paragraph (b).
Your Honour, I have the taken the matter following the provisions of the Act, and the next relevant section in the Act and relevant document that you have before you is the section 46 application made by the CFMEU, that it as a proposed amalgamated organisation be exempt from the requirement that a ballot of members be held, and in accordance with subsection (2) of section 46 you will see that that application was lodged with the section 44 application. It being an application in its own right, your Honour, I don't tender it.
You will see, and this is where we start jumping around in the Act, that section 63 deals with such applications, and that the CFMEU is entitled to make the application, and it's purely based on numbers, it's a numbers game this one, your Honour.
THE DEPUTY PRESIDENT: So it is special circumstances?
MR SLEVIN: Yes, unless there are special circumstances, and we submit that there are no special circumstances here. The numbers are crunched for you in the statements that are attached, and I think I will need to tender those statements, your Honour. The first is a statement of Michael O'Connor which is three paragraphs long, signed by him on 20 June 2017. I tender that statement.
THE DEPUTY PRESIDENT: Yes, just bear with me, I need to bring it up. Yes.
MR SLEVIN: And the second statement is a statement of Padraig Crumlin. It's three paragraphs in length as well and it's signed by him and dated 20 June 2017. I tender that statement.
The third statement attached to the section 46 application is a statement of Michele O'Neil. It's also three paragraphs in length, signed by her on 20 June 2017. I tender that statement.
You see in the grounds of the application, or you see first of all in the statements themselves, in those three exhibits, the numbers are set out, CFMEU's membership being 128,108 members; the MUA's being 12,663; the TCFUA being 3,359, giving a total for the MUA and the TCFUA of 16,022, or as you see in the grounds to the application about 12.5 per cent of the CFMEU's membership, which is half of the number in section 63 of 25 per cent, and so it meets the requirement in section 63. We say there are no special circumstances, and so the - - -
THE DEPUTY PRESIDENT: Mr Slevin, I note in the material that so far as the CFMEU national council resolution is concerned there was a dissenter if you like, but I also note that the union filed the "Yes" case and no opposing "No" case has been filed. Are they matters that I should take into account in determining special circumstances?
MR SLEVIN: Yes. We say there's no special circumstance in there being a dissent in a governing body of a union to start with, your Honour, but certainly - - -
THE DEPUTY PRESIDENT: Dissent coupled with a filed "No" case might have been a matter - - -
MR SLEVIN: That's right, depending on what was said in a company "No" case.
THE DEPUTY PRESIDENT: Yes.
MR SLEVIN: The "No" case of course arises from members as you see from the Act, and indeed there's no "No" case, so there are no special circumstances in any of this material that would preclude the application under section 46 of the exemption to be granted, in my submission, your Honour. The next matter is - - -
THE DEPUTY PRESIDENT: I assume these membership numbers are the same ones that have been notified to the National Executive of the ALP for the purposes of conferences.
MR SLEVIN: I can't assist you there. Section 47 is the next section in the Act that is relevant, and that becomes relevant because there is an application made by the TCFUA for an attendance ballot in part for its membership. For the purposes of subsection (2) of section 47, which requires that such an application be lodged with the section 44 - - -
THE DEPUTY PRESIDENT: I understand the rationale for the application principally because of language difficulties that might be associated with postal ballots. One of the matters that has been exercising my mind on that issue is how do I - assuming I were to allow such to occur how do I make an order requiring an employer to allow the AEC onto its premises to conduct an attendance ballot?
MR SLEVIN: Two answers - I think the first answer to that, your Honour, is I don't think you can make an order, and that the general provisions as to the way the AEC conducts itself would apply, but you don't need to trouble yourself with that because the contents of Ms O'Neil's third statement that I was about to tender, which indicates there's consent from the employers, the 27 employers who are identified. So I might do that methodically by first tendering this statement of Ms O'Neil. The statement is four pages in length and 20 paragraphs. It is signed by Ms O'Neil on the fourth page and dated 20 June 2017. I tender that statement.
THE DEPUTY PRESIDENT: Yes.
MR SLEVIN: And you will see the matter that you have already identified is paragraph 7. Ms O'Neil gives her extensive experience in the industry and then identifies the membership, the nature of the membership of the organisation. She identifies a large percentage of the membership coming from non-English speaking backgrounds, the majority of them being women, and the estimate is 65 to 70 per cent of workers in the industry, you see that at paragraph 8. At 11 you will see the - - -
THE DEPUTY PRESIDENT: Mr Slevin, you don't need to persuade me that this group of members in particular require special arrangements to be made in order that they can properly participate in this decision.
MR SLEVIN: Thank you. Mr Pasfield points out that at paragraph 16 Ms O'Neil refers to discussions with the AEC, and I am instructed that there have been further instructions and that the union and the AEC are well advanced in the preparation for conducting the ballot in the fashion described in the section 47 application, and you will see that description at ground 3, which is page 3 of the application, your Honour, and further information and the like about those workplaces have been provided to the AEC I am instructed.
Then the last of the documents filed, or the last set of documents filed is the form F65 notice of a ballot paper chosen by an organisation and containing alternative amalgamation in relation to a proposed amalgamation, and that provides the notice to the Commission, but in the scheme of the Act it seems there's nothing for you to do other than for the Commission to receive the notice. I don't propose to tender the statement attached to that notice.
THE DEPUTY PRESIDENT: I might simply mark it for identification.
MR SLEVIN: Your Honour, again going through this process of using the Act as a guide in formatting the submissions you will see that with the section - - -
THE DEPUTY PRESIDENT: That's a generous description of the Act.
MR SLEVIN: Sorry?
THE DEPUTY PRESIDENT: It's a generous description of the Act.
MR SLEVIN: Section 48 provides for the "Yes" case, and I note that your Honour has already made reference to having seen the "Yes" cases and noted that there are "No" cases. Just for completion and for the record, your Honour, you will see that the "Yes" cases were lodged with the application as required by section 48, and annexures D, E, F and G to the application are those "Yes" cases. I will tender those separately, your Honour, so annexure D is the "Yes" case for the CFMEU and MUA/TCFUA amalgamation. It's a one page document. I tender that.
THE DEPUTY PRESIDENT: This is the CFMEU "Yes" case.
MR SLEVIN: And that's put on the basis that the exemption under 46 is not granted.
THE DEPUTY PRESIDENT: Yes, I understand.
MR SLEVIN: The second is the vote "Yes" to the amalgamation. That's the MUA "Yes" case, your Honour.
The next two are the TCFUA "Yes" cases. So we will start with F, your Honour, which is the English version, the other version being Vietnamese, and that's a document of four pages. I tender that.
THE DEPUTY PRESIDENT: Yes, go ahead. I was just going to jump ahead of you.
MR SLEVIN: Can I just say in relation to that, and I am instructed that it's identical to the English one, your Honour, and it seems to me the pictures and diagrams are the same. I can't help you other than that. Can I say in the application at ground 10 it's indicated that the intention was that the Vietnamese version only go to specific members of the TCFUA who are identified as being Vietnamese speakers. The AEC have indicated in discussions that there's a preference that it be provided to all of the TCFUA voters, and so it's anticipated that will occur. So just to have you fully informed in relation to that "Yes" case, and I do so.
THE DEPUTY PRESIDENT: Yes.
MR SLEVIN: So, your Honour, that's the nature of the applications being made by my client - - -
THE DEPUTY PRESIDENT: And I should also note formally that I alluded to there being no "No" case filed in respect of any CFMEU interests. There are also no "No" cases to the best of my knowledge filed in respect of the MUA interests and the TCFUA interests.
MR SLEVIN: Another matter for your information, and it does impact on the way you deal with the matter is the question of the timing of the ballot. I note section 58 requires the Commission to consult with the Australian Electoral Commission to fix a day for the commencing and closing day of the ballot. Subsection (2) of section 58 specifies that it be not later than 28 days unless the AEC requires longer. We understand from the discussions that have occurred on my instructions, your Honour, that the AEC requires 56 days before commencement.
THE DEPUTY PRESIDENT: Yes, I think my associate has also been liaising with the AEC in relation to timing and other issues, and I certainly noted that it was a period longer than section 58 contemplated.
MR SLEVIN: What we have to say about that, your Honour, that 56 day period was we understood to be on the assumption that the order would be made today as given what's happened this morning and it may be that the use of the 56 day descriptor may not be the most appropriate, rather to fix a date - - -
THE DEPUTY PRESIDENT: I understand, and ultimately before I fix a date, assuming I approve a ballot, that will be done I think in consultation with the AEC. I had understood that someone from the AEC would be here today. Yes, there you are. You're hiding, right in the middle, that's a good place to be.
MR SLEVIN: The other aspect of the timing is the date that the ballot would close, and the ballot period as it were was also a two month period or a 56 day period in setting the date. My client's preference would be that it be 56 days from today that it open, and 112 days from today that it close.
THE DEPUTY PRESIDENT: Yes.
MR SLEVIN: Your Honour, that takes me to the section 55 considerations, and having taken you through the documents I don't plan to repeat myself. Hopefully that will lend itself to a short visit to section 55, because these matters it seems are not controversial. You will see that section 55 requires that approval must be given if certain conditions are satisfied, and subsection (1) says:
If at the conclusion of the hearing arranged under section 53 in relation to a proposed amalgamation the FWC is satisfied that, (a) the amalgamation does not involve the registration of an association as an organisation.
You can be satisfied of that, your Honour, there is no association that will be registered as a result of the proposed amalgamation. Secondly, and again we are blessed with the draftsperson's quirks I think, (b) is:
A person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of a proposed amalgamated organisation immediately after the amalgamation takes effect.
The effect of that, in my submission, your Honour, is that there's no change to the eligibility rule, and that's the case here.
THE DEPUTY PRESIDENT: That's the way I read that, yes.
MR SLEVIN: And then (c) - - -
THE DEPUTY PRESIDENT: Otherwise you would never approve an amalgamation.
MR SLEVIN: Yes.
THE DEPUTY PRESIDENT: Mr Wood might urge me to read it that way.
MR SLEVIN: That would be of no surprise at all, your Honour. Then (c) being:
Any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation, or is so similar to the name of another organisation as to be likely to cause confusion.
We say that you can be satisfied of that, your Honour, there is no one making any claim in relation to the name as far as we know, and certainly no one has made such a claim today that the name Construction Forestry Maritime Mining and Energy Union would be likely to cause any confusion, nor is it the same - or rather I should say it is not the same as any other organisation and is not so similar to any other organisation as to cause confusion.
THE DEPUTY PRESIDENT: Confusion is not the concern that has been expressed.
MR SLEVIN: That's right. Then (d):
Any proposed alteration to the rules of an existing organisation comply with and are not contrary to this Act, the Fair Work Act, modern awards or enterprise agreements and are not contrary to law.
I simply submit to you, and you can see by the consideration in particular of the marked up version of the rules that identifies the alterations that no alteration is being made that could be said to be contrary to the Act, the Fair Work Act, any award or enterprise agreement. We are certainly not aware of anything that would fit within that category, nor are we aware of anything that would otherwise make those changes contrary to the rule.
I think you can assume that the rules of the organisations currently have been made regularly and in accordance with the Act, the Fair Work Act, awards, enterprise agreements and otherwise are not contrary to law. I think you can make that assumption. I submit that you can make that assumption, your Honour, and as you see from the amendments in the annexures to the scheme nothing has been amended that would give rise to any concern there, and so you can be so satisfied in relation to paragraph (d). Then (e):
Any proposed deregistration of an existing organisation complies with this Act and is not otherwise contrary to law.
The deregistration proposed by this application will be a deregistration as mandated by section 73(3) paragraph (e), which requires the deregistration upon amalgamation, and so what's proposed is within the Act, within the law. So it will comply with the Act and is not otherwise contrary to law. So my submission is you can be satisfied of the last of those factors as well in paragraph (e), and being so satisfied of those five matters you must in accordance with the Act approve the submission of the amalgamation to ballot.
So finally, your Honour, in relation to the substantive applications my clients seek the order set out in paragraph 2.1 of the section 44 application, being an order that approves the submission of the amalgamation of the CFMEU, MUA and TCFUA to ballot. The CFMEU seeks the order in paragraph 2.1 of the section 46 application that the CFMEU be granted an exemption from the requirement for the ballot of its members be held in relation to the amalgamation, and the TCFUA seeks an order under section 47 that the TCFUA be granted approval for an attendance ballot to be conducted at the 27 workplaces listed in the statement of Ms O'Neil.
In terms of the substantive application, your Honour, they are the submissions of my clients, unless there's anything further.” 56
[52] Save for the issue raised by s.55(1)(c), which I earlier addressed, and a question of the approval of the Scheme by the relevant Committees of Management of the organisations concerned in the amalgamation, to which I shall shortly turn, no one was heard to contradict Mr Slevin’s submissions. On the basis of the material before me I accept the Applicants’ submissions concerning the submission to ballot of the amalgamation, the CFMEU’s submissions in support of its application under s.46 and the submissions of the TCFUA in support of its application under s.47 of the RO Act.
[53] During the hearing on 4 August 2017, AMMA and MBA raised an issue concerning whether the Scheme had been approved by the relevant Committees of Management organisations concerned in the amalgamation. Senior Counsel for AMMA and MBA raised a jurisdictional issue related to the principal application as follows:
“MR WOOD: Thank you, Deputy President. Deputy President, given that your decision to allow us to be heard on this jurisdictional issue, it's unnecessary for me to take you to a decision in Queensland dealing with relevantly identical circumstances which the precise decision that you've just made was made by the Commissioner in an amalgamation context with relevantly identical statutory framework and was approved by the Queensland Supreme Court as an appropriate way to proceed.
I'll hand a copy to my learned friends and a copy to you, Deputy President. That's more by way of supporting your decision and I don't need to go to it at all, Deputy President.
What we wish to say about the question of whether or not there is a valid application that has been lodged relates to the scheme and I think it's well understood that the central concept in this regime is the scheme for amalgamation. Section 40 provides that there is to be a scheme for every proposed amalgamation. It must set out all the matters in the section.
Subsection (2) of section 40, section 40(2) requires "the scheme" to be approved by resolution by the committee of management of each of the existing three organisations, relevantly the TCFUA, the MUA and the CFMEU. Section 44 concerns an application for approval or submissions in amalgamation of the scheme to ballot and uses mandatory language. And the application for approval for submission to ballot must be accompanied by a copy of the scheme for the amalgamation.
Now, what has happened in terms of the material before you, and this is no criticism of Mr Pasfield who sits alongside Mr Slevin, is it appears that a statement has been prepared by each of the relevant national secretaries, Mr O'Connor, Mr Crumlin and Ms O'Neil, on the same date, 20 June 2017, in relevantly similar form, attaching what appears to be a document that purports to say what occurred at various dates previously. So to give an example, there is - if you look at Mr O'Connor's statement he says:
Annexed hereto and marked MOC1 is a copy of each resolution passed by the national executive of the CFMEU –
- he national executive being the committee of management for the purpose of the Act -
- on 31 May 2017.
And then if you look at the document it's dated 20 June. So Mr O'Connor, using his memory some three weeks after - or whatever else he's used, some three weeks after the event has set out for the purposes of proving what needs to be proved what occurred three weeks previously. And if you look at what Mr Crumlin does, he does something very similar. He says:
Annexed hereto and marked PC1 is a copy of each resolution passed by the national council –
- again relevantly the committee of management for the purpose of the Act -
- on 12 April.
And again using his memory or whatever else he used some couple of months later he sets out what those resolutions were. And Ms O'Neil in similar form says on 20 June 2017, "This is what I say occurred at a meeting of the national council some couple of months earlier on 13 April."
Now, there's no evidence of who was present, there's no evidence of quorum, no evidence of whether the persons voting were actually members, no evidence of whether appropriate notice was given to any of the members of the relevant committees of management.
Now, you might say, Deputy President, you infer all those things. You've got the national secretary turning up, has made a statement, admittedly not contemporaneous, but it sets out what each of the national secretaries said occurred and that's good enough, and that might be the approach that you take. But you have to approach this having regard to the structure of the Act which requires that the scheme, the same scheme, has been approved by each of the relevant committees of management.
Now, there is no scheme attached to any of the statements of Ms O'Neil or Mr Crumlin or Mr O'Connor. They don't say, "This was the scheme on 12 April", for Mr Crumlin, on 13 April for Ms O'Neil and on 31 May for Mr O'Connor, "that was approved by the relevant committee of management." They're just left to be inferred from the fact that a scheme was provided with the application to you, Deputy President.
Now, again you might say, "Well, I can perhaps infer that whatever was provided to the Commission was the scheme that was actually voted upon by each of the committees of management. But you have to make that inference, Deputy President, because if you didn't infer that then the precondition for a valid application would not be there because you would not have as part of the evidence the proof that the scheme was approved by resolution by each of the committees of management.
And there is one very good reason why you shouldn't draw that inference, not just because the scheme in identical form has not been attested to by each of the national secretaries. But when you look at what Mr Crumlin says six weeks later, eight weeks later about what had happened on 12 April and then what Ms O'Neil says some six, eight weeks later about what happened the next day on 13 April, what Mr Crumlin says is in relation to "the scheme" that at the meeting on 12 April "the scheme was amended".
That's what he says at the - in the - his record of the resolutions that were passed. And if you look at the last of those resolutions you'll see on the second to last page that this record of what occurred on 12 April was that on 12 April there was an amendment to the scheme. And we've gone through the process of marrying up what is said in the resolution with the scheme as provided together with the application to you, Deputy President. And there seems to be a concordance between what was approved on 12 April and the scheme as provided to the Commission.
The very next day, according to Ms O'Neil admittedly eight weeks later, the TCFUA resolved to approve the scheme. Again none of these national secretaries tell you which scheme they're talking about. But that coincidence between the two dates, 12 April and 13 April, in the absence of any evidence provided to you of the actual scheme that was approved, must suggest that what was approved on 12 April by way of an amendment by the MUA was not the same scheme that was approved the very next day by the TCFUA (indistinct) some evidence. I mean, Ms O'Neil might be put in the witness box and she might say, "Look, I spoke to Mr Crumlin and I got the amendments the day before and I circulated them that morning and that's what occurred." That may be but there's no evidence of that.
And the rules of the TCFUA, when you look at them, strongly suggest that that's not what occurred because, relevantly, the TCFUA has a rule which governs these processes of amalgamation and says that the relevant body that is to deal with amalgamations is the national council and then sets out a rule for the way in which the national council should operate.
And that requires, and to some extent somewhat supportive of what my learned friend Mr Cross was saying about the unions he represents - - -
THE DEPUTY PRESIDENT: Which rule?
MR WOOD: Rule 24.
THE DEPUTY PRESIDENT: Thank you.
MR WOOD:
The national secretary shall notify each branch the date of the meeting of the national council, other than special meetings, at least three months before that date and the same time ask each branch to submit matters and questions to be dealt by the national council at such meeting.
All such matters and questions shall be submitted in writing to the national secretary at least six weeks before the date of such meeting. National secretary shall thereupon prepare an agenda which will submit the same to branches for consideration. The national council shall appoint an agenda committee which will prepare and set forth the order of business from the questions and matters submitted by the national executive branches.
Now, it could be that this was a special meeting. It could be that these processes weren't followed. It could be this was done as a matter of emergency. There's no evidence of any of that; no evidence of when national council was called, what was before them, who was there, what was resolved, what they voted on, the consideration of what had happened with the MUA the day before, just none of it.
And it could be that you are not prepared to find on the material provided to you, Deputy President, that the scheme in the same form was voted upon and considered by each branch - by each committee of management, relevantly the national council of the MUA and the TCFUA and the national executive of the CFMEU.
It is somewhat surprising to someone with some experience in these matters that this very truncated form of proof has been adopted. I'm not suggesting that in some - at some stages, at some times, that might not be sufficient proof. But one would expect in the normal course proper proof of the matters that need to be satisfied and, relevantly, that the same scheme was voted on by all three organisations and that just isn't there. Deputy President, that's all I wish to say about the jurisdictional objection.” 57
[54] AIMPE and AMOU supported the submissions advanced by AMMA and MBA set out above.
[55] At the hearing on 17 August 2017, the Applicants tendered further statements 58 of Mr O’Connor, Mr Crumlin, and Ms O’Neil, addressing the matters raised by AMMA and MBA. None of makers of these statements was required for cross examination. Having reviewed the material contained in the further statements, I am satisfied that in each case they address any shortcomings identified by AMMA and MBA and meet the jurisdictional objection raised. None of AMMA, MBA, AIMPE or AMOU sought to put a contrary view. In any event, it seems likely that the resolutions to which reference is made at [41] – [44] would also cure any earlier defect.
[56] In the circumstances, having concluded the hearing that I arranged under s.53 in relation to the proposed amalgamation, I am satisfied for the reasons earlier given:
- there is a valid application under s.44 of the RO Act;
- the Scheme as altered contains the matters it must contain as set out in s.40(2) of the RO Act;
- the alternative scheme of amalgamation contains the relevant particulars as required by s.41(2);
- the Scheme has been approved by resolution by the Committee of Management of each existing organisation concerned in the amalgamation;
- to the extent that the updating of the proposed CFMMEU rules take into account the General Manager’s consent to the eligibility rule alterations to the CFMEU rules and the consequent renumbering of the particulars of the proposed alterations to the existing rules of the CFMEU amounts to an alteration of the Scheme, the alteration has been approved by resolution by the Committee of Management of each existing organisation concerned in the amalgamation as set out in s.42(1) of the RO Act; and
- as to the matters set out in s.55(1)(a) – (e) of the RO Act.
[57] It follows that I must approve the submission of the amalgamation to ballot and pursuant to s.55(1) I do so.
[58] As earlier noted, the CFMEU has lodged, pursuant to s.46 of the RO Act, an application for exemption from the requirement that the ballot be held in relation to the proposed amalgamation. As the total number of members that could be admitted to membership of the proposed CFMMEU on and because of the amalgamation does not exceed 25% of the number of members of the CFMEU on 20 June 2017 (lodgement date), it appears that I must grant the application. There are no special circumstances of which I am aware which would allow me to refuse the application for exemption. No person sought to appear to make any submission as to the existence of special circumstances and none of the parties to whom permission to make submissions was given made any submission to that effect. The submission of a “no” case by the minimum number of CFMEU members under s.60(2), for example, might have raised special circumstances, however, no such case was filed. As I have already indicated I accept the CFMEU’s submission that there are no special circumstances. Pursuant to s.63(1) I therefore grant the exemption for which application has been made. The exemption has the effect set out in s.63(2) that CFMEU members are taken to have approved the proposed principal amalgamation and each proposed alterative.
[59] As I already indicated, the TCFUA has lodged an application under s.47 for approval of a proposal for submission of a proposed amalgamation for a ballot that is not conducted under s.65. In short compass, the proposal provides for a ballot to be by secret ballot of members of the TCFUA to be held at duly constituted meetings of members at 27 work places, to be conducted by the Australian Electoral Commission and for the TCFUA members to be given at least 21 days’ notice of the meeting, the matters to be considered at the meetings and their entitlement to an absent vote. The proposal also contains the other matters required by s.64 of the RO Act. Having consulted the Electoral Commissioner, I am satisfied that the proposal is practical and moreover, I consider that the approval of the proposal is likely to result in participation by members of the TCFUA that is fuller than the participation that would likely to have resulted if a ballot were conducted under s.65. I also consider that the proposed ballot will give members of the TCFUA an adequate opportunity to vote on the amalgamation without intimidation.
[60] For these reasons, it follows that I must approve the proposal for which application has been made and pursuant to s.64 I do so.
[61] As to the fixing of the commencing and closing days of the ballot as required by s.58 of the RO Act, I have consulted the Electoral Commissioner and I fix Thursday, 28 September 2017 as the commencing date of the ballot and 10.00am AEDT on 23 November 2017 as the date on which the ballot will close.
[62] As a consequence I determine:
1. Pursuant to s.55 of the RO Act, to approve the submission of the proposed amalgamation to ballot.
2. Pursuant to s.63 of the RO Act, to exempt the CFMEU from the requirement that a ballot of its members be held in relation to the proposed amalgamation.
3. Pursuant to s.64 of the RO Act, to approve the proposal for submission of the proposed amalgamation to ballot not be conducted under s.65 of the RO Act insofar as there will instead be an attendance ballot to be held of members of the TCFUA employed at the twenty seven (27) workplaces listed in Annexure “MON1” to the statement of Michele O’Neil dated 20 June 2017 lodged in support of the TCFUA’s application.
4. Pursuant to s.58 of the RO Act, to fix Thursday, 28 September 2017 as the commencing day of the ballot and 10.00am on Thursday, 23 November 2017 as the closing day of the ballot.
DEPUTY PRESIDENT
Appearances:
Mr A Slevin, Counsel for the CFMEU, MUA and TCFUA.
Mr S Wood, QC together with Mr B Jellis, Counsel for AMMA and MBA.
Mr B Cross, Counsel for AIMPE and AMOU.
Hearing details:
4 August 2017, Melbourne.
17 August 2017, Sydney.
1 Transcript (4 August 2017) PN177 – PN178, [2017] FWCG 116 and [2017] FWCG 117.
2 Transcript (4 August 2017) at PN12.
3 AMIPE & AMOU Outline of Submission dated 16 August 2017 at [1].
4 Ibid at [2].
5 Ibid at [3]
6 Ibid at [4].
7 Ibid at [5].
8 Ibid.
9 Ibid.
10 Statement of Mr Samuel Littlewood at [3] – [4].
11 Ibid at [6].
12 Ibid at [7].
13 Ibid at [5].
14 Ibid at [9].
15 Ibid at [10] – [11].
16 Ibid at [13].
17 Ibid at [14] – [15].
18 Transcript (4 August 2017) PN45.
19 AMIPE & AMOU Outline of Submission dated 16 August 2017 at [6].
20 [1992] AIRC 1114.
21 Transcript (4 August 2017) PN68.
22 [1992] AIRC 1114 at pg.4.
23 Transcript (4 August 2017) PN69.
24 Transcript (4 August 2017) PN70.
25 Transcript (4 August 2017) PN72.
26 AMMA & MBA’s Outline of Submissions dated 17 August 2017 at [2].
27 Ibid at [11].
28 Ibid at [12].
29 Ibid at [13].
30 Ibid at [14].
31 [2016] FWC 4328.
32 AMMA & MBA’s Outline of Submissions dated 17 August 2017 at [6].
33 Ibid at [15].
34 Transcript (4 August 2017) PN136.
35 Transcript (4 August 2017)PN128.
36 Transcript (4 August 2017) PN140.
37 Transcript (4 August 2017) PN142 – PN144.
38 Transcript (4 August 2017) PN145.
39 Transcript (4 August 2017) PN214.
40 Transcript (4 August 2017) PN217.
41 Transcript (4 August 2017) PN152.
42 Transcript (4 August 2017) PN157.
43 Transcript (17 August 2017) at PN169.
44 Transcript (17 August 2017) PN218.
45 Transcript (17 August 2017) PN 167 – PN 168.
46 Transcript (17 August 2017) PN 216 – PN 224
47 Statement of Mr Michael O’Connor dated 25 August 2017 at [3].
48 Ibid at [4].
49 Ibid at [5].
50 Ibid at MOC8.
51 Statement of Mr Padraig Crumlin dated 25 August 2017 at [3].
52 Ibid at [5].
53 Statement of Ms Michele O’Neill dated 25 August 2017 at [3].
54 Ibid at [4].
55 Ibid at [6].
56 Transcript (4 August 2017) PN142 – PN269
57 Transcript (4 August 2017) PN85 – PN115.
58 Exhibits 14, 15 and 16.
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