APPELLANT SEEKS COURT’S DETERMINATION ON WHETHER A RULE IN ONE DIVISION OF A UNION IS APPLICABLE IN ANOTHER DIVISION
O'Connor v Setka [2020] FCAFC 195 (11 November 2020)
This is a case wher the appellant seeks the court’s determination if a rule in one division of a union is applicable in in another division and that if is binding among all members of the union.
Facts:
The Rules of the Construction, Forestry, Maritime, Mining and Energy Union (the Union or the CFMMEU) now provide for there to be four Divisions of the Union, established on the basis of industry or occupation. The four Divisions are: (a) the Construction and General Division; (b) the Manufacturing Division; (c) the Mining and Energy Division; and (d) the Maritime Union of Australia Division.
Each Division has a degree of autonomy in relation to matters which do not directly affect the members of another Division and with respect to its funds and property. Each has its own rules (known as Division Rules) and the members in each may elect their own officers. The members of the Union are allocated to the particular Division covering the industry or employment of the member and may belong to one Division only.
The dispute arose in about August 2019 when the respondents, or at least some of them, began to encourage members of the Manufacturing Division in Victoria to “resign” from that Division and to “join” the Construction and General Division instead. The primary Judge found that over 200 members employed on construction sites and working in floor laying, glass and cabinet making occupations in Victoria have since resigned from the Manufacturing Division and have joined the Construction and General Division.
The appellant is a member of the Union, its National Secretary, and the Divisional Secretary of its Manufacturing Division. He brought an application under s.164 of the Fair Work (Registered Organisations) Act 2009 (the RO Act) seeking orders for the observance and performance of the Rules of the Union, as well as orders (viewed generally) directed to restoring the membership of the 200 or so members to the Manufacturing Division and restraining the respondents from further encouragement of its members to join the Construction and General Division.
In addition, he sought a declaration pursuant to s.21 of the Federal Court of Australia Act 1976 (the FCA Act) that persons who are eligible to be members of the Union pursuant to Rule 2(F) of the Rules in Victoria are not eligible to be members of the Construction and General Division.
The appellant submitted that Rule 26 of the National Rules had the effect that all of the Rules of the Union, including the Divisional Rules, were binding on all members. This meant, he submitted, that Rule 2 of the Manufacturing Division Rules was binding on the Construction and General Division and its members.
The respondents contested that the word “all” cannot mean literally that each member in each Division must comply with the Rules of another Division, only that each member must comply with the National Rules and the Divisional Rules of the Division to which they are allocated.
Issue: Is the rule in one division also binding in other divisions?
Held:
The position for which the respondents contended is too narrow and that the preferable construction is that Rule 26 requires all Divisions and all members to comply with all Rules which may applicable to them from time to time.
The court noted that the evidence at trial did not indicate the manner in which the eligibility Rules in each of the Manufacturing Division and the Construction and General Division had been made. As each Division has power to make its own rules it is at least theoretically possible that each Division could frame its eligibility Rule without regard to the eligibility Rules of the other Divisions. However, in practice, that is unlikely to occur. Any decision by a Division is subject to the overview of the National Executive. It may settle disputes between Divisions and ensure that Divisions carry out the Rules and decisions of the Union (Rule 15(iv)(e) and (h)). In addition, the National Executive may make, alter and rescind any Rule of the Union including a Divisional Rule (Rule 15(iv)(n)). Finally, the National Conference of the Union also has oversight of the Divisions and may make, alter or rescind any Divisional Rule. As the respondents’ own submissions indicated, the ability of Divisions to create their own rules and policies is limited to those which do not affect the members of other Divisions and which are consistent with the rules and policy of the Union as decided by the National Conference or the National Executive – see Rule 27(ii) and (iv). Further, Rule 25(d) has the effect that there cannot be a rule change by the National Conference, National Executive or National Executive Committee which affects the existence, autonomy or internal structures of a Division.
The court concludes therefore that Rule 2 of the Manufacturing Division Rules is a rule binding all members of the Union and supports the conclusion that the Rule 2(F) members are properly attached to the Manufacturing Division.
Conclusion: For the reasons given above, we allow the appeal and set aside the orders made by the Judge on 6 April 2020. Hence, the court orders that the First Respondent perform and observe the Rules of the CFMMEU by ceasing, desisting and refraining, by himself, his servants or agents, from inducing, encouraging or advising any members in the Victorian District of the Manufacturing Division eligible for membership pursuant to Rule 2(F) of the Rules to resign their membership in the Manufacturing Division of the CFMMEU.
