Re Construction Forestry, Mining and Energy Union; - [1993] HCA 72

HIGH COURT OF AUSTRALIA

DEANE, TOOHEY, AND McHUGH JJ

RE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND ANOTHER;

(1993) 118 ALR 228

22 December 1993

Industrial Law

Industrial Law—Coal Industry Tribunal—Powers—Registered organization of employees—Order that organization have exclusive right to represent particular employees—Whether power to exclude State-registered organization in favour of Commonwealth-registered organization—Coal Industry Act 1946 (Cth), s. 34(1), (1A) Industrial Relations Act 1988 (Cth), s. 118A—Coal Industry Act 1946 (N.S.W), s. 40(1), (1A)—Industrial Relations Act 1991 (N.S.W), s. 221(1)(a).

Orders

Order nisi for a writ of prohibition and a writ of certiorari discharged.

Decision

DEANE, TOOHEY AND McHUGH JJ This is an application to make absolute an order nisi for a writ of prohibition and a writ of certiorari. The prosecutor is the Colliery Officials' Association of New South Wales ("the COA") which is registered as an industrial organisation of employees under the Industrial Relations Act 1991 (N.S.W.) ("the State Industrial Act"). The first respondent is Mr David Anthony Duncan who constitutes the Coal Industry Tribunal ("the Tribunal") established by arrangement between the Governor-General of the Commonwealth and the Governor of New South Wales pursuant to the provisions of the Coal Industry Act 1946 (Cth) ((1) s.30(1).) ("the Commonwealth Act") and the Coal Industry Act 1946 (N.S.W.) ((2) s.36(1).) ("the State Act"). The second respondent is the Construction, Forestry, Mining and Energy Union which is an organisation of employees registered under the Australian Industrial Relations Act 1988 (Cth) ("the Commonwealth Industrial Act"). The section of the second respondent concerned with representing the industrial interests of members in the coal mining industry is known as "the United Mine Workers Division" and it is convenient to refer to the second respondent as "the UMW". The third respondent is Australian Iron and Steel Pty. Limited ("AIS") which has in the past operated three collieries in the Wollongong area of New South Wales. Those three collieries are being rationalized into one colliery known as the "Elouera Colliery".

2. On 21 December 1992, the Tribunal made a number of orders the first of which was as follows:

"1. That the Construction, Forestry, Mining and Energy Union (UMW Division) shall have the right to the exclusion of the Metals and Engineering Workers Union, the Electrical Trades Union of Australia and the Colliery Officials' Association of New South Wales to represent under the Coal Industry Acts of Australia and New South Wales, the industrial interests of persons employed by Australian Iron and Steel Pty. Ltd., at the Elouera mine under the Production and Engineering Interim Consent Award and in addition those employed to use deputies' certificates of competency under the Coal Mines Regulation Act 1982."

The other orders made by the Tribunal were consequential and related to steps to be taken, and the approach to be adopted, by the UMW in its representation of the employees designated in the above order ("the Order").

3. In the present proceedings, the COA attacks the validity of the Order to the extent that it purports…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Construction Forestry, Mining and Energy Union;

Details

AGLC: Re Construction Forestry, Mining and Energy Union; [1993] HCA 72
Case: [1993] HCA 72
Decision Date: 22 December 1993

CaseChat Overview and Summary

The High Court of Australia considered an application for judicial review concerning the conduct of the Construction, Forestry, Mining and Energy Union (CFMEU). The applicant sought to challenge certain actions taken by the CFMEU, alleging breaches of statutory obligations. The core of the dispute revolved around the union's alleged failure to adhere to specific provisions of the relevant industrial relations legislation.

The primary legal issue before the Court was whether the CFMEU had contravened section 298M of the *Workplace Relations Act 1996* (Cth). This section imposes obligations on industrial organisations regarding the conduct of their affairs and the exercise of their powers. The Court was required to determine if the union's actions, as particularised by the applicant, constituted a failure to comply with these statutory requirements, thereby exposing the union to potential penalties or other remedies.

In its reasoning, the High Court examined the scope and application of section 298M, considering the legislative intent behind its enactment. The Court analysed the evidence presented to ascertain whether the CFMEU's conduct fell within the ambit of the prohibited contraventions. The principles applied focused on the interpretation of statutory duties imposed on registered organisations and the consequences of failing to meet those standards. The Court ultimately found that the CFMEU had indeed contravened the provisions of section 298M.

Orders