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Fair Work Act 2009






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


Application/Notification by Kelly


Disamalgamation of Construction, Forestry Maritime, Mining and Energy Union





4.33 PM, WEDNESDAY, 28 APRIL 2021


JUSTICE ROSS:  Good afternoon.  This is Justice Ross.  Could I have the appearances please.  If I can begin with the applicant.


MR H BORENSTEIN:  Your Honour, I seek leave - permission - I seek permission to appear for the applicant Mr Bakri.  It's Herman Borenstein.


JUSTICE ROSS:  Yes.  Thank you, Mr Borenstein.  For the amalgamated organisation?


MR DOWLING:  Good afternoon, your Honour.  It's Mr Dowling here.  I seek permission to appear of the amalgamated organisation with Mr Massy.


JUSTICE ROSS:  Thank you, Mr Dowling.  I also have a note of an appearance from the manufacturing division.


MS WILES:  Yes, your Honour.  It's Vivien Wiles here appearing with Jenny Kruschel.


JUSTICE ROSS:  Thank you, Ms Wiles.  And I note that we have a journalist Mr Mark Skulley in the (indistinct) as well.  Look, I don't propose to deal with the permission question at the moment.  Ultimately it'll be a matter for the Full Bench that I'll constitute with the application.


Can I go to the question of draft directions.  The applicant has filed draft directions which I think you've all seen.  Mr Dowling, we've also received a set of draft directions from the amalgamated organisation.  I take it those have also been provided to the applicant.


MR DOWLING:  They have, your Honour, yes.


JUSTICE ROSS:  All right.  Well, Mr Borenstein, perhaps if I hear from you first.  You'll see from the amalgamated organisation's directions that they raise squarely the issue of whether you're within or your client is within the relevant timeframe, as (indistinct) threshold issue.  What do you wish to say about the amalgamated organisation's proposed directions and anything you wish to say in support of your own?


MR BORENSTEIN:  Can I say in support of our own first that we have sought to frame the application and the attachments to it, or the annexures to it in a way which exposes the basis upon which we invoke section 94, and you will see that in the application itself in the particulars we've spelt out the appointment that Mr Kelly as the authorised representative of the Committee of Management, and the resolution is attached.


In paragraph 3, we have explained the manner in which we say that the manufacturing division is a separately constituted constituent part and we have attached annexure 2, and in annexure 2, which I'm sure Mr Dowling has read, we have spelt it out in very clear steps at part (b) in paragraph 79, where we have said that the division is a constituent part of the CFMMEU, which is the amalgamated organisation for the purposes of this part of the legislation.  We have spelt out how the division became a constituent part in that it became a - in that it resulted from an amalgamation between the CF - single M - EU and the Maritime Union and the TCFUA in 2018, which is just two years ago, or three years ago rather.  Two and a half years actually.  And that the division is therefore a separately identifiable constituent part under paragraph (c) of the definition in section 93.


Now section 93 had the definition of separately identifiable constituent part amended at the time of these other amendments that were made recently, and the specific amendment relevant to this is in paragraph (c).  Paragraphs (a) and (b) are leftovers from the original withdrawal from the amalgamation provisions that were introduced many years ago, and they all operate by reference to there being an ongoing part which is identifiable and which is leftover after amalgamation, where the organisation of which that part formed part was deregistered in the amalgamation.  I'm sorry, that's very convoluted.


But in paragraph (c) it said that - it extends the definition of a separately identifiable constituent part to any part of the branch, division or part of the organisation not covered by (a) or (b).  So that points to the availability of this process to a part of an amalgamated organisation that did not find its place in an organisation that became deregistered as part of the amalgamation.  So as we set out in the documents, the manufacturing division was a division or a separately identifiable part of the CF - single M - EU, which entered into an amalgamation and as a result of that amalgamation there was a new amalgamated organisation which was the CFMMEU and the manufacturing division was a separately identifiable constituent part of that new entity.  So on that basis the relevant facts which we've set out in the application already is that the amalgamation in question from which the period in section 94 is to be counted, is the amalgamation in 2018 and we are more than two years from that amalgamation and less than five years from that amalgamation, and that's just an objective fact.  It was on that basis that we filed the application.


Given that those facts are in the materials that we filed and that have been made available to the registered organisation, it was our view when we framed these directions that the basic qualifying facts for section 94 were in the material and that they were objective facts.  Facts that are on the public record and that they qualified as the requirements for section 94 to be invoked.  So what we proposed was that within a reasonably short time, say by 12 May which is about two weeks, that the amalgamated organisation or any other relevant party of the kind referred to in the legislation who wish to make objection, should identify the nature of the objection which they are making.


The purpose of that was to frame the parameters for any dispute that was going to arise.  The intention was that once we knew what the parameters of the dispute were, then it would be - the Commission would be in a much better position and in an informed position to make directions which were tailored to best deal with the actual dispute which was going to be raised against the withdrawal application.


We thought that was the most efficient way of dealing with it, that is identify the parameters of the dispute and then make directions as to how it will be dealt with.  The problem we have with the amalgamated organisation's directions is that it appears, although not very clearly, it appears to raise one point and one point only.  We don't know whether it is holding back in reserve other points that it wishes to raise as well.


We are concerned that this application should not be unduly delayed and so we submit that the appropriate thing would be for the amalgamated organisation and any other objectors to put before the Commission all of the grounds of objection which they propose to raise.  The materials are there and they can identify what they are.  They can say whether they take objection to the resolutions or they take objection to Mr Kelly's membership or whatever you like, but to expose what the argument is going to be.  We don't want to be caught in a situation where we have an argument on this first point and then that argument takes however it takes and then presumably or possibly goes off the court or wherever else, and then some many months later the amalgamated organisation puts its hand up and says but we've got a second point now.  Let's do the second point.  Go through the same process.  We've got a third point now.  Let's do the same process.  We think that is most inefficient and unfair to the applicant organisation.  We think it's much fairer and much more efficient that the amalgamated organisation is frank with the Commission.  It identifies all of the objections it wishes to take and it may be that more than one objection can be dealt with together in an efficient way.  Or it might be that one point has to be dealt with first.  But that can best be judged when we know the full scope of what is in issue between the amalgamated organisation and the applicant.


So we say that the draft submission which we have proposed is preferable because it allows that process to take place, rather than a process which will appear to give us a hearing date sometime in June or thereabouts on a single point, without any guarantee that there won't be other points that follow months and months later.  We're concerned to get this thing on and we're concerned to get it done expeditiously and fairly, and we say that that's best accomplished by having the amalgamated organisation and anyone else to show their cards at the outset and then to deal with the situation that those cards expose.


JUSTICE ROSS:  Thank you, Mr Borenstein.  Mr Dowling.


MR DOWLING:  Thank you, your Honour.  We should explain some of the reasons why we propose the directions we do.  Your Honour no doubt will be familiar with the sections but can we explain that section 94(1) imposes a time limit that's been referred to by my learned friend of:


At least two years after the date when the constituent part became part of the amalgamated organisation but no more than five years after that date.


Now we have read the application and the part to which Mr Borenstein referred and it seems clear enough to us that the applicant says that the relevant date is 27 March 2018.  For our part we say that that section properly construed, and by properly construed I'm referring to the reference to the amalgamated organisation, that reference when properly construed the date is 1992.


Now your Honour will have also seen that one of the new provisions inserted was 94A which does provide for an extension to accept (indistinct) outside that five year period but the applicant does not make an application for extension of 94A, under 94A.  So the narrow constructional question that we seek to have determined first is whether the application should be accepted based on what the relevant date is as to when the constitute part became a part of the amalgamated organisation.  It is, we say, a question that goes to jurisdiction and a question that should be determined first, and if we're right that's the end of the matter.


Now responding to what my learned friend says, and that is that it wants to see - the applicant wants to see all aspects of the case put against it, not only by the amalgamated organisation but by anybody else.  What that does, your Honour, is (indistinct) to set out all aspects of their case, to go to that time, effort and expense to set out all aspects of their case including what they say about section 94.  What they say about section 95.  What they say about section 95A and the balance of section 100, in circumstances where if we are right about our interpretation of section 94(1), all of that would be wasted time, money and resources.  It's in those circumstances that we urge upon the Commission the determination of that narrow constructional issue about who is right about section 94(1).  If we're right, that's the end of the matter and all of the parties shouldn't be put to additional expense.


Can we just say something briefly - very briefly and your Honour alluded to it right at the commencement, in terms of the question of the referral to the Full Bench.  Can we just suggest this, your Honour.  If your Honour is minded to accept the course that we propose, what we think might be most prudent is that your Honour could determine that question, there's no doubt you have power to do so under section 108A, and there would be no need at this time for the referral.  But we're happy to address you on that further if you would like but we just raise that as a matter related to the course that we propose.


JUSTICE ROSS:  Why wouldn't I, if I'm to adopt the course you propose, why wouldn't it go to a Full Bench?  What would be the utility in me dealing with it alone?


MR DOWLING:  Well, only that as we read the provisions of the Act, your Honour, section 615A would apply in respect of any reference.  108A provides the power that as we read the Act there'd still need to be an application made under section 615A and that would require the applicant to satisfy you that it was in the public interest for such a referral, and as things - - -


JUSTICE ROSS:  Yes, I'm not sure I follow that, Mr Dowling.  I refer matters to Full Benches.  The allocation of work and to whom is a matter for me.  Parties can make an allocation but are you suggesting I can't refer it to a Full Bench without an application?


MR DOWLING:  No, your Honour.  Your Honour has that power but we understood there'd been - there was an application of sorts being made by the first direction proposed by the applicant.


JUSTICE ROSS:  Well, even if there is, I still don't understand why I would be dealing with this as a single member and why I wouldn't refer it to a Full Bench.  As night follows day there'll be an appeal from the decision, so whatever's decided, what's the utility of it being dealt with by a single member and not going to a Full Bench?


MR DOWLING:  Only that it would follow the normal process, your Honour.  I suppose if one was minded to pay regard to the public interest considerations then as things presently stand, this is the only application of its kind.  There's no suggestion there's more or any others and it might be a resources matter for the Commission as to whether three members should be tied as opposed to one.  But we don't - I accept what your Honour says in terms of the power that you have.  We were approaching it on the process of an application being made and if an application was being made, it was our position that the applicant had to satisfy you of the circumstances in 615A.  But I didn't mean to side-track us, your Honour.  The emphasis of what we want to say is really in the draft directions we proposed.


JUSTICE ROSS:  No, okay.  Thank you, Mr Dowling.  Mr Borenstein, is the application you advance, it's not - I hadn't or hadn't read it as being put in the alternative.  That is if you're wrong about the relevant date of the amalgamation in question and it wasn't 27 March 2018, and such that you would require an extension and you would also need to mount the application on a different basis, that is the conduct of the amalgamated organisation, are you putting it in the alternative or are you essentially putting all your eggs in the 94(1) basket?


MR BORENSTEIN:  We only have one basket, your Honour.


JUSTICE ROSS:  Well, if you've only got one then if you fail on that point you fail completely.


MR BORENSTEIN:  That may be so.


JUSTICE ROSS:  Look, I have some sympathy for the proposition that it's desirable to frame the parameters to any dispute.  In fact I had asked the Commission staff to prepare a background paper in respect of the application and the legislative framework, and to articulate a series of questions which would identify the issues and then invite any party opposing the application to identify what were the issues in dispute.  Plainly, one of those is the 94(1) question.  I'm also conscious that - of your observation about dealing with the matter in a timely way, Mr Borenstein, but as I understand from your earlier submission, you've said all you want to say about the 94(1) question in your application.


MR BORENSTEIN:  Well, we - I'm sorry, your Honour.  We have and I must say - I'm sorry to interrupt you but I must say that our complaint about Mr Dowling or Mr Dowling's client's draft directions were that they didn't provide anything like the specificity which he has done this afternoon in his submission.  Now this afternoon he's identified for the first and only time why they say 94(1) doesn't apply, and that is because they say that the amalgamated organisation is not that produced by the 2018 amalgamation but by one 30 years ago.


Now if that's the totality of his argument that can be addressed but again, he's asking for us to try and put an argument in anticipation of the various nuances - - -


JUSTICE ROSS:  No, I understand that, Mr Borenstein, and I wasn't intending to indicate that I was attracted necessarily to the directions that Mr Dowling had proposed.  Rather that if, as you've taken us to, you've advanced your argument in the application - - -




JUSTICE ROSS:  - - - as to why you say the amalgamation in question is the 27 March 2018 matter.




JUSTICE ROSS:  It would then - I want to foreshadow a particular course of action and then invite each of you to comment.  The first part of it would be to issue  a direction that the amalgamated organisation file its submission in respect of the 94(1) point, so what Mr Dowling has essentially raised as a threshold argument.  Once that's filed (indistinct) two or three thereafter and it could also provide for an opportunity to reply to that if you sought it, Mr Borenstein.




JUSTICE ROSS:  But then there would be a hearing and the hearing would determine that question.  Mindful of your point that well, to use the vernacular, you don't want to be a salami slice in the exercise.  Whilst that process is taking place, we would also release a background paper which would seek to identify the range of decision points in dealing with such an application, and would then provide a process for the amalgamated organisation and anyone else to identify what matters other than the 94(1) point were in contest.


So those two things would happen in parallel.  Mr Dowling, it wouldn't be a case of you identifying your full written submission on each and every point in contention, but simply identifying in short form which objections you were taking and a short summary of the substance.  Then if the 94(1) point is decided in favour of the applicant, then there would be a mention to determine the next steps in the process.


That doesn't extend the process unnecessarily.  It allows for that - the clear question in contest to be determined and it allows for a process to determine the parameters of the dispute in an orderly way.  It's likely that that would take some weeks in any event, Mr Borenstein, to determine the parameters of the dispute, at least the broad nature of the objections.  I agree that it's desirable that you know all of those at some point in time, and at the same time it allows us to determine the 94(1) question.  As Mr Dowling says, if that's decided in his favour well there's no need or there's nothing further to determine.




JUSTICE ROSS:  So Mr Borenstein, can I go to you first and then Mr Dowling and invite you to comment on that proposition.


MR BORENSTEIN:  Your Honour, we're favourably inclined to that proposition.  You indicated that we could have a facility for reply to the union's submissions and we would certainly seek that because we would wish to respond once we see the precise way in which they advance the argument, and if we are to provide a proper contradiction to it, to assist the Commission, we would want that opportunity.  So I don't know what sort of timeframes your Honour had in mind but looking at the directions Mr Dowling framed, his first direction was for something to be filed by 12 May, which is two weeks, and then something else two weeks after that.  We would have thought that sort of timeframe would be appropriate.


JUSTICE ROSS:  All right.  Thank you.  Mr Dowling?


MR DOWLING:  Thank you, your Honour.  Likewise, we think that is a prudent course to adopt, your Honour.  Just a couple of small tweaks.  Your Honour mentioned that we might file the submissions on the 94(1) point.  It may be necessary to file some very brief evidence on it - - -




MR DOWLING:  - - - which might just go to what occurred in 1992 and thereafter and what occurred in 2018.  So we would ask that that direction be submissions and any statements of evidence, I think is the expression most commonly used.




MR DOWLING:  As to the timing of it, can we please request that we have three weeks to do that and if our learned friend wants three weeks we're quite comfortable with that.  If he wants less that's a matter for him.  But otherwise we're content with the course you've proposed in respect of the parallel briefing paper and the outlining of the issues, noting what your Honour says that it's not intended to be the full detail of the argument we might put but simply explaining in broad terms the objection we take - the objections - other objections we take.


JUSTICE ROSS:  All right.  Thank you, Mr Dowling.  Mr Borenstein, I want to confer with my colleagues so - but in the event that - it's just in terms of the dates, I'm sure that they'll agree with the process given the attitude of the respective parties.  But if Mr Dowling's clients were provided with the opportunity to file their material by 19 May, what time period do you seek for the reply?  Two weeks or one week or three weeks?


MR BORENSTEIN:  Well, I'm anticipating - I'm anticipating the nature of the evidence which Mr Dowling's referred to, it's been canvassed several times in recent months including in a number of judgments in the Federal Court.




MR BORENSTEIN:  And it's really just producing documents which provide an objective record of what's happened.  So I think that we probably - I don't want to sort of kick myself completely but we probably won't need to go into any great deal of evidence, if any, in response.  So perhaps we could have two weeks but that the direction should include a facility to file any statements if it becomes necessary when we see Mr Dowling's material.


JUSTICE ROSS:  We'll certainly put in liberty to apply as well, and once the material's in I would imagine there'd be a short telephone mention as well, just to see whether any of the witnesses would be required for cross-examination or whether there can be a measure of agreement about the relevant facts.




JUSTICE ROSS:  And look, in the meantime I'll attend to this tomorrow.  I'll constitute a Full Bench, I'll confer with the other members and then my Associate will be - well, in touch with each of you or is it more convenient to - this is about availability for the Full Bench hearing.  I don't want to set it down only to find out you're both occupied elsewhere.  Is it convenient if that be done directly with your chambers or do you want it through your instructor?


MR BORENSTEIN:  My preference would be go through my instructor, if your Honour pleases.


JUSTICE ROSS:  No problem.  Is that Mr Pasfield?




JUSTICE ROSS:  And for you, Mr Dowling?


MR DOWLING:  Likewise, your Honour.  It's Mr Murphy at Maurice Blackburn.




MR DOWLING:  Thank you, your Honour.


JUSTICE ROSS:  All right.  No, no problem.  Ms Wiles, I've neglected to include you in this discussion, I apologise for that.  I was working on the assumption that had you a violent objection to anything that was being said you would have drawn my attention to it.  But was there anything that you wanted to add, or was there anything in relation to the course of action proposed that you took exception to?


MS WILES:  Thank you, your Honour.  No, we don't oppose the proposed course of action.


JUSTICE ROSS:  All right.  Then let me recap that the amalgamated organisation would file its submissions and any statement of evidence in respect of the section 94(1) point by 4 pm on 19 May.  Then applicant would filed its material in reply by - well two weeks after that date.  There'd be liberty to apply.  My chambers will be in touch with your instructors about appropriate hearing dates, I don't imagine it would take more than a day, and at the same time I will arrange for the publication of a background paper identifying the issues and setting out a process to identify in short form the nature of the objections to the application, other than the 94(1) point.  All right.  Is there anything future?


MR BORENSTEIN:  No, thank you.


MR DOWLING:  No, thank you, your Honour.


JUSTICE ROSS:  All right.  Thank you.  Thank you for your attendance and we'll be in touch.  I'll adjourn.


MS WILES:  Thank you.


MR DOWLING:  Thank you, your Honour.

ADJOURNED INDEFINITELY                                                            [5.06 PM]