THE HEARING of an application by the CFMEU, MUA and TCFUA to amalgamate and form a so-called ‘super union’ is now pending a decision of the Fair Work Commission (FWC).

Last Friday (2 February) in Melbourne, AREEA represented the resources and energy industry in the third FWC hearing regarding the proposed amalgamation. AREEA, which appeared with the Master Builders Association, was represented by Stuart Wood QC and Ben Jellis of counsel. The unions were represented by Herman Borenstein QC.

In order to approve the amalgamation and set a date for its effect, FWC Deputy President Gostencnik is required under section 73 of the Fair Work (Registered Organisations) Act 2009 (Cth) to be satisfied in four areas – the key area of dispute in this case being that there must be no proceedings (other than civil proceedings) pending against the existing organisations in relation to breaching modern awards, enterprise agreements or relevant workplace laws.

Expanding on evidence provided in AREEA’s written objections to the proposed merger, AREEA informed the FWC of at least 47 ongoing civil penalty cases against the CFMEU and the MUA, arguing that these penalty proceedings could not be classified as ‘civil’.

Addressing the clause itself, AREEA argued that the inclusion of civil penalty cases as a ‘civil proceeding’ reduces the clause’s efficacy, as there is no possibility of a criminal proceeding arising out of a breach of a modern award or enterprise agreement.

AREEA further argued that section 73 regarding union amalgamations should not be treated as a simple ‘box checking exercise’ and rather should be utilised to maintain certain standards among registered organisations consistent with the objects of the legislation and the special privileges it affords.

The unions argued that the penalty cases were civil proceedings and as such should not be taken into account by the FWC when considering an amalgamation application.

Deputy President Gostencnik reserved his decision and advised he will publish his decision as soon as practicable. Should the amalgamation be approved, the unions have requested that it be set for 21 days following the decision.

History of proceedings

The unions’ formal proceedings to amalgamate commenced on 20 June 2017, when the CFMEU, MUA, and TCFUA filed their joint application with the FWC. Deputy President Gostencnik has presided over two previous hearings regarding the application.

AREEA appeared at both previous hearings on behalf of the resources and energy industry assisting the commission in ensuring that the applicant unions followed the required processes under the current laws.

On 31 August 2017, Deputy President Gostencnik issued a Decision, providing for the unions to ballot their members. Ballot reports were provided to the commission on 29 November 2017 informing that members had voted ‘yes’ to amalgamate.

Throughout these proceedings, AREEA has maintained that the proposed amalgamation poses a significant threat to the continuity of the entire supply chain across the resources industry.

Public interest test

It has been Australian Government policy since 2016 to reinstate a public interest test before registered organisations including unions are authorised to amalgamate. This policy translated into legislation (Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2017) introduced in 2017 but remaining unpassed by the Senate.

Due to industry’s concerns about the proposed CFMEU, MUA and TCFUA merger, AREEA has been strongly campaigning in support of this legislation.

As Parliament resumes this week AREEA is stepping up its lobbying to get this legislation passed as soon as possible and safeguard the Australian public against union mergers that would threaten the community, Australia’s economy and living standards.

This would not be an anti-union law. Unions that honestly and lawfully represent their members and always comply with Australian workplace laws should easily pass such a merger test.

We are simply asking that our parliamentarians safeguard our industry and the broader community from union intimidation and thuggery by ensuring union mergers can only proceed where they are consistent with expectations of the broader Australian community, just like the standards that corporate business mergers are held to.

For more information or to get involved in AREEA’s campaigning on this issue, contact [email protected]