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Fair Work Act 2009







s.94(1) RO Act - Application for ballots for withdrawal from amalgamated organisation

Application by Michael O’Connor – withdrawal from amalgamated organisation – Manufacturing Division – Construction, Forestry, Maritime, Mining and Energy Union (D2022/11)



10.00 AM, MONDAY, 3 OCTOBER 2015


Continued from 21/09/2022



JUSTICE ROSS:  Thank you.  I have Mr Borenstein with Mr Bakri for the applicant; Mr Dowling with Mr Massy for the CFMMEU, and is Mr Rawson in this one?




JUSTICE ROSS:  No, all right.  Mr Borenstein, you will have seen the draft directions filed by the CFMMEU.




JUSTICE ROSS:  What do you want to say about those and perhaps any differences between those and the ones that the applicant has proposed?


MR BORENSTEIN:  Once again, we have got the matter of the page limits and, having regard to what Mr Dowling said previously, we assume they can be ignored.




MR BORENSTEIN:  Or deleted, I should say.  Secondly, we are not happy with the dates that are proposed by the union.  We note that they are proposing a listing in the early part of December in the same way as the previous matter, but they have squashed up the directions so that they finish three or four weeks before the hearing date.


For our part, we have prepared directions which allow each of the parties three weeks for their submissions and that still gets us to the same hearing date period, and so we would submit that the dates in our directions should be adopted.


If there are any problems about that from the union's point of view, then we may be able to do the same sort of adjustment that we did in the last matter and still get ourselves to a date in the early part of December.


The other thing is that we have framed our directions on the basis that all the objections that are noted in the union's document would be heard together.  Of course, noting what your Honour said in the last matter about the jurisdictional objections, the Commission may decide to just deal with the single jurisdictional objection, but the other objections, to our eye, don't appear to be extensive in their reach in terms of what would be required to argue them, and so we are instructed to ask the Commission to have a single hearing and deal with all the matters that are raised as objections in the one hearing.


JUSTICE ROSS:  Okay, thanks.  Mr Dowling?


MR DOWLING:  Thank you, your Honour.  Yes, we don't maintain the page limit that we have in our draft.  The substantive difference between the two of us, your Honour, is, as you have just heard, what we propose is the hearing of the jurisdictional issue first and then the balance of the objections.  Can we explain why, your Honour.


What might not be obvious to your Honour, but is clearly the case, is that there will be substantial evidence about the application of the Rules as provided for by section 95A(4), so what we are very much concerned to do, your Honour, or to ensure, is that that expense of putting on material and arguing about the application of the Eligibility Rules, that evidence, the expense, the resources allocated to it, and indeed the disturbance within the organisation about it, the parties should not be put to that expense in circumstances where, if we are right on the jurisdictional objection there was no valid application in any case, we can tell you that on our best estimate at the moment, there could be between two and six days of evidence about the application of the Rules.


There was one small part of a debate between these two parties heard before the Full Court about the application of a group of members and that took up five days, your Honour, and that was in relation to a different question, but that group of members would be subject to evidence about the application of the Eligibility Rules, indeed, together with other challenges to the application of the Eligibility Rules.  That is what we are seeking to avoid, your Honour.


In those circumstances, we say it would be much more efficient if the jurisdictional objection was heard first.  It can be done in a day.  You will see we have timetabled so that it happens within less than 10 weeks.  That's the way the first Kelly matter progressed and indeed now the second Kelly matter has progressed, we say because that is the most efficient way of dealing with it, and that's why we urge that course.


Can we add to that, your Honour, there's not been any material to suggest there is a case for urgency from Mr O'Connor.  Indeed, he has been able to make the application for two years now and hasn't chosen to do it earlier.  So, when we put together that substantial burden on the parties for the evidence that will be required in relation to the non-jurisdictional objections, together with a lack of any reason for urgency, together with the fact that the jurisdictional objection on the timetable would be heard within 10 weeks, we say that is the most efficient course.


As for the days, again we think if a week was taken off the reply - I think the applicant has three weeks, three weeks and three weeks - and, again, if there was one week taken off the reply and added to the date by which the CFMMEU is to file their material, those dates would accommodate us.


JUSTICE ROSS:  Can you run through what that would look like, Mr Dowling, just so there's no misunderstanding?


MR DOWLING:  That would have the applicant's material by the 24th, the CFMMEU's by 21 December, and then 5 December as the reply material for the applicant.




MR DOWLING:  The only other issue, your Honour, or two issues perhaps:  one, we would need to make sure that there's at least a seven-day period before the reply material and the hearing, but given what your Honour said in the other matter, we understand it wouldn't be before the 12th anyway.


JUSTICE ROSS:  Well, it may be on the 12th, but, yes.


MR DOWLING:  Yes, your Honour.  The only other issue, you will have seen by the way we timetabled both matters together, we were endeavouring to ensure they weren't heard on the same day.


JUSTICE ROSS:  No, they won't be.


MR DOWLING:  Thank you, your Honour, and that there was, at least if possible, some small period in between them so as to accommodate the parties.


JUSTICE ROSS:  Yes.  I am required to sit on them, so they wouldn't be on the same day.  At least that's as I understand the relevant provisions of the Registered Organisations Act.  I suspect we would hear the Manufacturing matter on the 12th and then the following week would be the Mining Division matter.


MR DOWLING:  Yes, your Honour.


JUSTICE ROSS:  But I will check that with my colleagues.


All right, was there anything else you wanted to say, Mr Dowling?


MR DOWLING:  No, your Honour, thank you.


JUSTICE ROSS:  Okay.  Anything you wanted to put in reply, Mr Borenstein?


MR BORENSTEIN:  No, your Honour.


JUSTICE ROSS:  All right.  Thank you both.  I will endeavour to get the directions out later today.  Thank you, I will adjourn.

ADJOURNED INDEFINITELY                                                [10.10 AM]