Mining and Energy Union (301V)
[2023] FWC 3154
•1 DECEMBER 2023
[2023] FWC 3154
The attached document replaces the document previously issued with the above code on 1 December 2023 correcting Mr Michael Weise’s permit number (RE2021/641).
Associate to Deputy President Gostencnik
1 December 2023
| [2023] FWC 3154 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.603 - Varying FWC decisions to issue right of entry permits
Mining and Energy Union (301V)
(RE2021/922 and others listed in Annexure A)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 DECEMBER 2023 |
Decision to vary FWC decisions – variation to entry permits following withdrawal from amalgamated organisation - Mining and Energy Division – Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Union
On 3 April 2023, a Full Bench of the Commission approved an application by Graeme Kelly under s 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) for a secret ballot to be held to decide whether the Mining and Energy Division (M&E Division) of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) should withdraw from the CFMMEU.[1] The subsequently held secret ballot of M&E Division members approved the withdrawal of the M&E Division from the CFMMEU. By consent order dated 20 November 2023, Shariff J acting pursuant to s 109(1)(a) of the RO Act, fixed 1 December 2023 as the date the withdrawal of the M&E Division from the CFMMEU is to take effect.[2] Accordingly, on 1 December 2023 the M&E Division withdraws from the CFMMEU and becomes a registered organisation known as the Mining and Energy Union (MEU). The CFMMEU becomes known as the Construction, Forestry and Maritime Employees Union (CFMEU).
Forty-nine (49) of the officials and employees of the M&E Division of the CFMMEU hold entry permits issued under s 512 of the Fair Work Act 2009 (FW Act) and are listed at Annexure A of this decision. On and from 1 December 2023, those officials and employees become officials and employees of the MEU. By operation of s 115 of the RO Act the entry permits they each hold are “an instrument to which” Part 3 applies. Section 93 of the RO Act provides that an “instrument to which this part applies” relevantly includes an instrument that was given to or in favour of the amalgamated organisation, the CFMMEU. As applicant for each entry permit issued to the 49 officials and employees under s 512 of the FW Act, each permit was issued in favour of the CFMMEU even though the permit is issued to, and held by, the relevant official or employee. The permits are likely also to be “an instrument to which” Part 3 applies because they each contain a reference to the amalgamated organisation, the CFMMEU.
The effect of s 115 of the RO Act is that on and from 1 December 2023, the entry permits held by the 49 individuals continue to have full force and effect as though a reference to the CFMMEU in the entry permits were a reference to the MEU.
To avoid any confusion about the continuing rights of the 49 individual permit holders to exercise entry rights and to be bound by the attendant obligations, I propose, pursuant to s 603(2)(a), to move on the Commission’s own initiative to vary each decision granting permits to the 49 individual permit holders. The variation will reflect the name of the registered organisation of which from 1 December 2023, the persons are officials or employees. This is a course supported by the MEU and the 49 individual permit holders.
The relevant power to vary decisions of the Commission is found in s 603 of the FW Act which relevantly provides:
603 Varying and revoking the FWC’s decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC
may vary or revoke the instrument under this subsection (seesubsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
…
The reference to “decision” in s 603 of the FW Act carries the meaning ascribed to it by s 598. Subsection 603(1) confers a discretion to vary or revoke ‘a decision of the FWC that is made under [the FW] Act’ (other than a decision referred to in s 603(3)). Section 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary or revoke in s 603(1).
A decision of the Commission to issue an entry permit is a decision which falls within the scope of s 603(1), in that it is a decision made by the Commission under the FW Act that does not fall within the scope of the exclusions in s 603(3). That a decision to issue an entry permit and a decision to impose conditions on an entry permit are each a decision within the meaning of s 598 is confirmed by subsection 601(5) which excludes a decision to issue an entry permit under s 512 and a decision to impose conditions on an entry permit under s 515 from the obligation in subsection 601(4) requiring the Commission to publish on its website or by any other means certain decisions. Therefore, each of the 49 decisions the subject of this decision is capable of being amended.
In the circumstances, I consider it appropriate to exercise my discretion to vary the decisions to issue entry permits referenced in the third column of Annexure A made on application by the CFMMEU to the permit holders listed in the second column of Annexure A to reflect that those permit holders are now officials or employees of the MEU.
I will also vary the decisions noted in the fifth column of Annexure A as imposing a condition on an entry permit issued that the permit holder must not exercise rights under Subdivision AA of Division 2 of Part 3-4 of the Act until the permit holder completes appropriate training in relation to that subdivision and files a copy of the training completion certificate in the Commission (TCF condition). The TCF condition will not apply to any permit holders who are officials or employees of the MEU because, unlike the CFMMEU’s rules, the MEU’s eligibility rules do not allow persons who are TCF employees or workers to be enrolled as members. The condition is neither necessary nor justified as a matter of power.
An order to this effect is set out below.
Order
I order as follows:
1.Each decision to issue an entry permit referenced in the third column of Annexure A to an official or employee of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) listed in the second column of Annexure A is amended to reflect that the individual is an official or employee of the Mining and Energy Union (MEU);
2.Each entry permit referenced in the third column of Annexure A which was issued to an official or employee of the CFMMEU listed in the second column of Annexure A pursuant to each decision to which order 1 applies, is amended to reflect that the individual is an official or employee of the MEU;
3.Each decision noted in the fifth column of Annexure A as imposing a TCF condition on a permit held by a CFMMEU official or employee listed in the second column of Annexure A is amended to revoke the TCF condition imposed;
4.Each entry permit noted in the fifth column of Annexure A as containing a TCF condition on a permit held by a CFMMEU official or employee listed in the second column of Annexure A is amended to remove the TCF condition; and
5.An entry permit amended in accordance with order 2, and where applicable, order 4 be issued to each permit holder listed in the second column of Annexure A.
The Order will take effect on 1 December 2023.
Amended permits will be separately issued to the MEU officers and employees listed in Annexure A.
DEPUTY PRESIDENT
Annexure A
| # | Permit holder name | Permit number | Expiry date | TCF condition |
| 1 | Stephen Barrett | RE2021/922 | 20/09/2024 | |
| 2 | Monique Blasiak | RE2022/1440 | 16/02/2026 | Y |
| 3 | Gregory Braes | RE2023/539 | 29/06/2026 | Y |
| 4 | Shane Brunker | RE2023/324 | 09/05/2026 | |
| 5 | Gregory Busson | RE2021/126 | 23/03/2024 | |
| 6 | Robert Calov | RE2021/572 | 22/06/2024 | |
| 7 | Craig Carberry | RE2022/549 | 21/9/2025 | Y |
| 8 | Andrew Davey | RE2022/1027 | 21/09/2025 | Y |
| 9 | Anthony Davis | RE2023/243 | 05/04/2026 | Y |
| 10 | Keenon Endacott | RE2021/601 | 25/06/2024 | |
| 11 | Todd Ferguson | RE2022/1393 | 22/12/2025 | Y |
| 12 | Ricky Gale | RE2021/1330 | 21/02/2025 | |
| 13 | Adam Hammett | RE2023/175 | 25/05/2026 | Y |
| 14 | Chad Hanson | RE2022/335 | 07/06/2025 | |
| 15 | Todd Hardy | RE2021/1201 | 25/11/2024 | |
| 16 | Matthew Howard | RE2022/1213 | 29/11/2025 | Y |
| 17 | Mitch Hughes | RE2021/1117 | 28/10/2024 | |
| 18 | Warren Johncock | RE2021/727 | 27/07/2024 | |
| 19 | Todd Jones | RE2023/351 | 02/06/2026 | Y |
| 20 | Grahame Kelly | RE2021/662 | 19/07/2024 | |
| 21 | Adam Lain | RE2023/548 | 14/07/2026 | Y |
| 22 | Stephen Luck | RE2021/721 | 29/07/2024 | |
| 23 | Anthony Maher | RE2021/99 | 09/03/2024 | |
| 24 | Jeremy McWilliams | RE2022/503 | 04/08/2025 | |
| 25 | Jason Miller | RE2023/1013 | 03/11/2026 | |
| 26 | Christopher Newman | RE2021/953 | 12/10/2024 | |
| 27 | Graeme Osborne | RE2021/895 | 06/09/2024 | |
| 28 | George Pearce | RE2021/327 | 17/05/2024 | |
| 29 | Gregory Peters | RE2021/663 | 28/06/2024 | |
| 30 | Steven Pierce | RE2021/763 | 05/08/2024 | |
| 31 | Glenn Power | RE2023/337 | 09/05/2026 | Y |
| 32 | Nicholas Price | RE2023/319 | 16/05/2026 | Y |
| 33 | Mark Richards | RE2022/941 | 21/09/2025 | Y |
| 34 | Andrew Rivett | RE2023/965 | 28/11/2026 | Y |
| 35 | Alister Robinson | RE2023/280 | 09/05/2026 | Y |
| 36 | Eliza Sarlos | RE2023/185 | 28/03/2026 | Y |
| 37 | Leslie Schefe | RE2022/419 | 28/06/2025 | |
| 38 | Andrew Smith | RE2021/1222 | 10/12/2024 | |
| 39 | Stephen Smyth | RE2022/134 | 15/03/2025 | |
| 40 | Richard Staker | RE2021/631 | 09/07/2024 | |
| 41 | Michael Taggart | RE2021/1231 | 10/12/2024 | |
| 42 | Scott Taylor | RE2022/11 | 10/02/2025 | |
| 43 | Shane Thompson | RE2020/1026 | 04/12/2023 | |
| 44 | Robert Timbs | RE2022/493 | 28/07/2025 | |
| 45 | Stephen Tranter | RE2021/77 | 04/03/2024 | |
| 46 | Anthony Watson | RE2023/573 | 25/07/2026 | Y |
| 47 | Michael Weise | RE2021/641 | 02/07/2024 | |
| 48 | Robin Williams | RE2023/538 | 29/06/2026 | Y |
| 49 | Mark Zerner | RE2023/323 | 25/07/2026 | Y |
[1] Application by Grahame Patrick Kelly [2023] FWCFB 64
[2] Grahame Patrick Kelly v Construction, Forestry, Maritime, Mining and Energy Union NSD1120/2023, Order dated 20 November 2023
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