Construction, Forestry, Mining and Energy Union; The Maritime Union of Australia and Textile, Clothing and Footwear Union of Australia

The case involved an application by three unions, the Construction, Forestry, Mining and Energy Union, the Maritime Union of Australia, and the Textile, Clothing and Footwear Union of Australia, to the Fair Work Commission for approval of their proposed amalgamation. The unions sought to combine into a single entity, and the Commission was required to determine whether it was satisfied of certain matters specified in section 73(2) of the Registered Organisations Act 2009. This included whether the amalgamation would be in the interests of the employees of the unions and their members, and whether the new union would be fit and proper to be registered. The unions argued that the proceedings for the imposition of a pecuniary penalty were not "civil proceedings" within the meaning of section 73(2)(b) of the Act. They contended that such proceedings were not "in relation to" the amalgamation, and therefore the Commission should not have taken them into account in deciding whether it was satisfied of the matters in section 73(2).

The court examined the meaning of "civil proceedings" and whether proceedings for the imposition of a pecuniary penalty were such proceedings. It considered the legislative history and the ordinary meaning of the words used in the Act. The court found that proceedings for the imposition of a pecuniary penalty were indeed "civil proceedings" as they were proceedings in a court or before a person exercising judicial or quasi-judicial functions, and they were not criminal proceedings. The court also considered the meaning of "in relation to" and whether the proceedings were in relation to the amalgamation. It found that the proceedings were in relation to the amalgamation as they concerned the conduct of the unions in relation to their proposed amalgamation.

The court concluded that the Commission was correct to take into account the proceedings for the imposition of a pecuniary penalty in deciding whether it was satisfied of the matters in section 73(2) of the Act. The court found that the unions had not provided sufficient evidence to satisfy the Commission that the amalgamation would be in the interests of their employees and members, and that the new union would be fit and proper to be registered. The court fixed the date of the amalgamation between the three unions as 1 July 2021. The unions were ordered to pay the costs of the application.