FWC shoots down appeal of union merger approval
Employment June 22, 2018 11:31 pm By Cat Fredenburgh | Melbourne

Two employer groups have lost their appeal of a Fair Work Commission decision that signed off on the merger of the Construction, Forestry, Mining and Energy Union with two other unions.

In a decision published Friday, the Full Bench of the Fair Work Commission said Deputy President Val Commissioner Gostencnik’s finding that the merger could not be blocked for failing to meet the requirements of the Registered Organisations Act was correct.

Under the Act, the Commission can approve an amalgamation if “there are no proceedings (other than civil proceedings)” pending against any of the organisations that are involved in the merger.

The Australian Mines and Metal Association, along with Master Builders Australia, opposed the super union merger on the grounds that two of the unions do not meet the requirements for merger approval under the Act because they had several civil penalty proceedings pending against them, while the MUA also had a contempt proceeding pending against it in the Supreme Court of Victoria.

The groups filed an appeal to the full commission on March 8, two days after the merger was approved.

In blessing the amalgamation, Commissioner Gostencnik said that there were no criminal nor any other relevant proceedings pending against the applicants.

The Full Bench agreed with Commissioner Gostencnik that civil proceedings, including civil penalty proceedings, were exempt under the Act.

In his decision, Commissioner Gostencnik siad the current legal framework did not allow him to block the deal because of civil proceedings against the unions and tossed the ball into Parliament’s court.

“Lest it be said that, by discharging my duties under statute which I am bound to do by my oath of office and by law, I condone any of the conduct for which any of the Applicant organisations or various of their officials have been held to account by the courts, nothing could be further from the truth,” Gostencnik said.

“But if that is to be a bar to the fixing of an amalgamation day in connection with the amalgamation of organisations under the Registered Organisations Act, then it is a matter for the Parliament to decide and legislate accordingly. On my reading of the statute it has not thus far done so.”

A bill supported by the industry groups – the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill – that would have subjected the merger to a public interests tests has stalled in Parliament.

In April, the Minister for Workplace Relations Craig Lundy said the Government will continue to pursue the Ensuring Integrity Bill through the Parliament.

The bill passed the House this year, and Lundy said it would have passed the Senate if not for stiff opposition from Labor.

The unions were represented by Slater & Gordon. The industry groups were represented by Herbert Smith Freehills.

The FWC case is Australian Mines and Metals Association; Master Builders Australia Limited v Construction, Forestry, Mining and Energy Union; Maritime Union of Australia; Textile, Clothing and Footwear Union of Australia.

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Christine Caulfield

Christine Caulfield has been a journalist for 18 years. She was most recently the Co-Managing Editor at US legal news publication Law360. Prior to that she worked as the County Court reporter for The Herald Sun. She is Co-Founder and Editor of Lawyerly.