O'Connor v Construction, Forestry, Mining, Maritime and Energy Union

Federal Court of Australia (Full Court)|2023-09-08|Before: Raper JJ

Counsel for the Applicant Mr H Borenstein KC Mr Y Bakri

Solicitor for the Applicant Slater & Gordon

Counsel for the First Respondent Mr C Dowling SC Mr C Massy

Counsel for the Second Respondent The Second Respondent submitted to any order the Court, save as to the question of costs

Solicitor for the Second Respondent Australian Government Solicitor

AND: CONSTRUCTION, FORESTY, MARITIME, MINING AND ENERGY UNION First Respondent

order made by: RANGIAH, WHEELAHAN AND RAPER JJ DATE OF ORDER: 8 september 2023

The application is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The Construction, Forestry, Maritime, Mining, and Energy Union (the Union) is an organisation of employees that is registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act). The Union, as currently constituted, is the product of a number of amalgamations over the course of many years. The national rules of the Union establish four industry-based divisions into which the Union is divided. One of those divisions is the Manufacturing Division. The applicant, Mr O'Connor, is the Divisional Secretary of the Manufacturing Division. 2 On 13 January 2023, the Full Bench of the Fair Work Commission dismissed an application by the applicant under s 94 of the RO Act for a secret ballot to be held to decide whether the Manufacturing Division should withdraw from the Union: Application by Michael O'Connor for withdrawal from amalgamated organisation [2023] FWCFB 8. The application was dismissed because the Commission was not satisfied, for the purposes of s 94(1)(c) of the RO Act, that the application was made before the period of five years after the Manufacturing Division became part of the Union as a result of an amalgamation had elapsed, and therefore held it had no jurisdiction to order the ballot. 3 The applicant challenges the Commission's decision in the original jurisdiction of this Court on the ground that it is affected by jurisdictional error. He seeks an order in the nature of certiorari quashing the decision, and an order in the nature of mandamus remitting the application to the Commission for determination according to law. After consultation between the Chief Justice and the President of the Commission, the application was referred to a Full Court for hearing: see, Federal Court of Australia Act 1976 (Cth), s 20(1A).

The legislation 4 The applicable legislation was considered by the Full Court in Kelly v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 130; 294 FCR 295 (Kelly v CFMMEU), which involved an application to have a secret ballot on the question whether the Mining and Energy Division should withdraw from the Union. For present purposes, it is sufficient to refer to ss 92, 93(1), 94(1), and 100(1) of the RO Act. 5 Part 2 of Chapter 3 of the RO Act provides for the amalgamation of organisations, as did the predecessor law (as defined), being the Workplace Relations Act 1996 (Cth), including when it was titled the Industrial Relations Act 1988 (Cth), as in force after 1 February 1991. The operation of Part 2 of Chapter 3 of the RO Act and the history of the antecedent provisions were referred to by the Full Court in Kelly v CFMMEU at [67]-[73]. 6 Part 3 of Chapter 3 of the RO Act is titled "Withdrawal from amalgamations". Section 92 provides for the object - 92 Object of Part The object of this Part is to provide for: (a) certain organisations that have taken part in amalgamations (either under this Act or the Workplace Relations Act 1996 as in force before the commencement of this Part) to be reconstituted and re-registered; and (b) branches, divisions or parts of organisations of that kind to be formed into organisations and registered; in a way that is fair to the members of the organisations concerned and the creditors of those organisations. 7 In determining the weight to be given to the object in s 92 as informing the construction of the operative provisions it is important to note that the definition of "separately identifiable constituent part" in s 93(1) of the RO Act was amended in 2020 by the addition of (c). The amendment will be addressed below. 8 One of the first steps for a constituent part of a registered organisation to effect a withdrawal is for the Commission to order that a ballot be held. Subsection 94(1) authorises the making of an application for a secret ballot where the three cumulative conditions in (a), (b), and (c) are engaged. Relevant to this application are the conditions in s 94(1)(a) and (c) - 94 Applications to the FWC for ballots (1) An application may be made to the FWC for a secret ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if: (a) the constituent part became part of the organisation as a result of an amalgamation under Part 2 or a predecessor law; and (b) the amalgamation occurred no less than 2 years prior to the date of the application; and (c) the application is made before the period of 5 years after the amalgamation occurred has elapsed. … 9 By the conditions in paragraphs (b) and (c), s 94(1) provides for a window of between two and five years after an amalgamation within which to make an application for withdrawal. Section 94A of the RO Act authorises the Commission to accept an application under s 94 after five years of the amalgamation, if it is satisfied that it is appropriate to accept the application having regard to the matters referred to in s 94A(2). Section 94A is not relevant to this application, as it was not relied on by the applicant before the Commission. 10 Section 94 employs the term "amalgamated organisation", which is defined by s 93(1) of the RO Act as follows - amalgamated organisation, in relation to an amalgamation, means the organisation of which members of a de-registered organisation became members under paragraph 73(3)(d) of Part 2, or an equivalent provision of a predecessor law, but does not include any such organisation that was subsequently de-registered under Part 2 or a predecessor law. 11 In Kelly v CFMMEU, the Full Court noted at [115] that where, as in this case, the mechanism for amalgamation is for one of the existing organisations to become the amalgamated organisation, the amalgamated organisation will already be a registered organisation. 12 Subsection 93(1) also defines "constituent part" as including "a separately identifiable constituent part", which in turn is defined as follows - separately identifiable constituent part, in relation to an amalgamated organisation, means: (a) if an organisation de-registered under Part 2 or a predecessor law in connection with the formation of the amalgamated organisation remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation - that branch, division or part; or (b) if a State or Territory branch of such a de-registered organisation under its rules as in force immediately before its de-registration remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation - that branch, division or part; or (c) any branch, division or part of the amalgamated organisation not covered by paragraph (a) or (b) that is separately identifiable under the rules of the organisation. 13 As we mentioned above, paragraph (c) of the above definition was added in 2020. The amending Act was the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020 (Cth). The explanation given for the amendment in the explanatory memorandum for the Bill was - 16. The effect of this amendment is to provide that the withdrawal provisions set out in Part 3 of Chapter 3 apply to any branch, division or part of an amalgamated organisation that is separately identifiable under the rules of the organisation. This means that the ability to withdraw from an amalgamation is not limited by the pre-requisite of de-registration in connection with the formation of the amalgamated organisation. 14 It was not in issue that the Manufacturing Division of the Union was not covered by paragraph (a) or (b) of the definition of "separately identifiable constituent part", and that it was a separately identifiable division under the rules of the Union, thereby engaging paragraph (c). 15 Subsection 100(1) mandates that a secret ballot take place if the Commission is satisfied of a number of matters, including that the application was validly made under s 94 - 100 Orders for ballots (1) The FWC must order that a vote of the constituent members be taken by secret ballot, to decide whether the constituent part of the amalgamated organisation should withdraw from the organisation, if the FWC is satisfied that: (a) the application for the ballot is validly made under section 94; and (b) the outline under section 95 relating to the application: (i) is a fair and accurate representation of the proposal for withdrawal from the organisation; and (ii) addresses any matters mentioned in paragraph 95(1)(b) or prescribed for the purposes of paragraph 95(1)(c) in a fair and accurate manner; and (ba) the material required by section 95A complies with the requirements of that section; and (c) the proposal for withdrawal from the organisation complies with any requirements specified in the regulations. 16 If more than 50% of the formal votes cast in a ballot are in favour of a constituent part of an amalgamated organisation withdrawing from the organisation, then under s 109(1) of the RO Act the Federal Court must, on application, determine: (a) the day on which the withdrawal is to take effect; (b) make such orders as are necessary to apportion the assets and liabilities of the amalgamated organisation between the amalgamated organisation and the constituent part; and (c) make such other orders as it thinks fit in connection with giving effect to the withdrawal.

The application to the Commission 17 The applicant's application to the Commission was made on 15 September 2022. As required by s 95 of the RO Act, it was accompanied by an outline of the proposed withdrawal of the Manufacturing Division. It was proposed that upon withdrawal from the Union the Manufacturing Division would be constituted as a new registered organisation with the name, "Australian Production Industries and Finishing Trades Union", and that members of the Manufacturing Division would become members of the newly registered organisation and cease membership of the Union. The eligibility rules of the new registered organisation would be consistent with those rules of the Union in relation to the attachment of members to the Manufacturing Division. The Divisions of the Union were separate reporting entities, and maintained some autonomy over their financial affairs. It was proposed that the newly registered organisation would assume ownership of all of the funds, assets, property, and liabilities of the Manufacturing Division as outlined in the most recent financial report to the Registered Organisations Commissioner by the Manufacturing Division, with any necessary adjustments being made to reflect the date of withdrawal.

The decision of the Commission 18 The applicant's application to the Commission was referred to a Full Bench, of which the President was a member: RO Act, s 108A. 19 The applicant's case before the Commission was that the Manufacturing Division had become a constituent part of the Union in 2018 as a result of the amalgamation of the Textile Clothing and Footwear Union of Australia (TCFUA). It was on this basis that the applicant sought to satisfy the Commission that s 94(1)(a) and (c) of the RO Act were engaged. 20 The Commission traced the history of amalgamations to which the Union was a party. Relevantly, in March 1993 the Federated Furnishing Trade Society of Australia amalgamated with the Construction Forestry Mining and Energy Union, the Operative Painters and Decorators Union of Australia, and the Victorian State Building Trades Union. At that point, the Union was organised into union-based Divisions, and there was established a new division known as the "FFTS Union Division". 21 Some years later, in July 2002, rule 42D was inserted into the Union's rules, which provided a timeline for the restructuring of the FFTS Union Division into the Forestry and Forest, Building Products Manufacturing Division, which became known as the FFPD. On 26 March 2005, pursuant to rule 42D, the FFTS Union Division was removed from the Union's rules, leaving three Divisions: (1) the Mining and Energy Division; (2) the Construction and General Division; and (3) the FFPD. Until the 2018 amalgamation involving the TCFUA, the FFPD was comprised of members eligible to join the Union under eligibility rules 2(C) and (F). 22 The Commission referred to the scheme of amalgamation that was submitted with the application made under s 44 of the RO Act for a ballot to approve the 2018 amalgamation, and at [13]-[14] the Commission described the following features of the scheme - (1) the Union was the proposed amalgamated organisation; (2) the Maritime Union of Australia (MUA) and the TCFUA were to be merged with the Union; (3) upon amalgamation, the MUA and the TCFUA would be deregistered; (4) the Maritime Union of Australia Division (MUA Division) of the Union would be created; (5) there would be a merger of the TCFUA with the FFPD of the CFMEU, which would be renamed as the Manufacturing Division of the Union; (6) upon becoming members of the Union, former TCFUA members would be attached to the Manufacturing Division and the eligibility rules of the Manufacturing Division would incorporate the eligibility rules of the TCFUA; (7) current TCFUA branches would be integrated into the Manufacturing Division structures; (8) there would be created a textile, clothing and footwear sector (TCF Sector) within the Manufacturing Division constituted on the amalgamation day by members of the TCFUA and then by all TCF Sector members; (9) there would be established a TCF Sector Council with specific roles and responsibilities in respect of policy and industrial issues relating to the TCF industry; and (10) specific TCF positions and offices in the Union and the Manufacturing Division would be established. 23 The scheme of amalgamation annexed a marked-up version of the proposed rules of the Manufacturing Division. At [22], the Commission summarised the alterations that were proposed to the Manufacturing Division rules. Upon the hearing of this application, senior counsel for the applicant did not dispute the accuracy of the Commission's summary, but submitted to the Court an aide-mémoire with a more detailed account of the amendments to the national rules of the Union and the Manufacturing Division rules. 24 The Commission accepted that the Manufacturing Division was a separately identifiable constituent part of the Union for the purposes of the definition in s 93(1) of the RO Act. This was not in dispute. However, the Commission was not satisfied that the Manufacturing Division became part of the Union as a result of the 2018 amalgamation. In summary, the Commission's reasons at [32]-[36] were as follows - (1) the Commission stated at [32] that the requirement in s 94(1) of the RO Act that the "constituent part became part of the [amalgamated] organisation" suggested that what was required was that the whole of the constituent part became part of the organisation as a result of the amalgamation, and not merely some element of the constituent part; (2) immediately before the 2018 amalgamation a significant portion of what was now the Manufacturing Division was the FFPD, with which the membership of the TCFUA was structurally merged; (3) the scheme for amalgamation made clear that a new division was not being created, but rather that there was a merger of the TCFUA with the FFPD, which was then renamed as the Manufacturing Division; (4) the situation with the Manufacturing Division could be contrasted with the merger of the MUA in 2018, where an entirely new MUA Division was created; (5) in substance, what had occurred "as a result of" the 2018 amalgamation was not that the Manufacturing Division "became part of" the Union, but rather TCFUA members were allocated to the FFPD, which was then renamed and some new offices for former TCFUA officials and a TCF Sector Council were created; (6) there were many features of the Manufacturing Division that remained unchanged, which the Commission at [35] identified as follows - • organisational management structures of the Division such as the Divisional Conference and the Divisional Executive remained, subject to the addition of new officers from the TCFUA; • districts of the Division remained unchanged, except to include additional TCFUA members; • governance of the districts remained relevantly unchanged subject to the inclusion of a TCF Assistant Secretary and TCF Full Time Officer for the Victorian District; • officers of the FFPD continued in their positions, unaffected by the amalgamation; • duties of the Divisional President and Secretary remained relevantly unchanged; • election provisions, except for the provisional rules relating to the new TCFUA officers, remained unchanged; and • members allocated to the FFPD remained allocated to the division - there is no separate rule allocating or transitioning members of the FFPD to the Manufacturing Division. (Footnotes omitted.); (7) the Commission at [36] found further support for its conclusion in the fact that there were no transitional provisions for the transfer of any funds of the FFPD to the Manufacturing Division, and in the fact that a new rule 44(xiii) provided that all offices of the FFPD continued. 25 At [37], the Commission considered and rejected a submission made by the applicant in reliance on the Full Court's decision in Kelly v CFMMEU. The applicant had submitted to the Commission that the Full Court had distinguished the position of the Mining and Energy Division, where there had been no change to it as a constituent part, from the position of the Manufacturing Division, where it was submitted that the Full Court held that the Manufacturing Division was newly created as a result of the 2018 amalgamation. That submission is renewed on this application, and we will address it below. 26 The Commission stated at [38] that while changes to the Union rules were made to accommodate the new TCFUA members and officers, those changes proceeded on the basis that the existence of the FFPD was to continue unaffected, subject to the addition of new members, officers, and specific TCF industry arrangements. The Commission concluded - … the route chosen was to expand the membership of an existing division of the organisation and to change its name and some of its rules to facilitate the incorporation of the TCFUA membership. And so, while the FFPD was modified and renamed as a result of the 2018 amalgamation, it did not become part of the amalgamated organisation as a result of the 2018 amalgamation because it was already a constituent part of that organisation.

The submissions of the applicant 27 The applicant submitted that the Commission had misconstrued s 94(1)(a) of the RO Act, by treating it as requiring that the whole of the constituent part must have become part of the registered organisation as a result of the amalgamation. It was submitted that if a division of the Union that existed prior to the amalgamation was altered as a result of the amalgamation, then the requirement in s 94(1)(a) of the RO Act would be met. In this way, it was submitted that the Commission had misapplied s 94(1)(a) by treating it as not engaged if a part of the Manufacturing Division could be traced back to the FFPD before amalgamation with the TCFUA, rather than addressing the terms of the s 94(1)(a) by asking whether the Manufacturing Division, as constituted, became part of the Union as a result of the amalgamation. The applicant submitted that the changes to the rules of the Union that occurred as a result of the 2018 amalgamation belied the proposition that the Manufacturing Division is the same as the FFPD before the 2018 amalgamation. The applicant relied on a summary of changes that was in [34]-[36] of his outline of submissions that was before the Commission, together with the aide-mémoire to which we referred earlier. The key elements of the applicant's submission were picked up by the Commission at [13]-[22] of its decision. 28 In support of his submissions, the applicant contended that the Manufacturing Division of the Union was comprised of those members of the Union who were attached to the Manufacturing Division pursuant to the Union's eligibility rules. It was submitted that, amongst other things, the change in the eligibility criteria for attachment to the Manufacturing Division by the addition of criteria for former TCFUA members had the consequence that the Manufacturing Division, as a constituent part of the Union, became part of the Union only upon the 2018 amalgamation. It was submitted that this was the only conclusion to which the Commission could have lawfully come on the basis of the material before it. 29 The applicant further submitted that the Commission's decision was inconsistent with the analysis of the Full Court in Kelly v CFMMEU. As we have mentioned, Kelly v CFMMEU involved an application to have a secret ballot on the question whether the Mining and Energy Division should withdraw from the Union. The applicant relied on a passage in [138] of the reasons of the Full Court, the full text of which is as follows - 138 The scheme for the 2018 Amalgamation stated that the registered organisations proposing to amalgamate were the CFMEU, the MUA and the TCFUA. The CFMEU was to remain registered and to be the amalgamated organisation. The MUA and the TCFUA were to be de-registered. The name of the CFMEU was to be changed to the CFMMEU. The rules were to be altered, including by creating a new MUA Division and creating a new Manufacturing Division by merging the TCFUA with the Forestry Division. The rules for the M&E Division were not altered. The 2018 Amalgamation took effect in accordance with the scheme. (Emphasis added.) 30 The applicant submitted that in the following paragraph the Full Court contrasted this situation with the situation of the Mining and Energy Division. We will set out the whole of [139] - 139 The 2018 Amalgamation did not involve the creation of any new entity. While it may have been open to the amalgamating unions to adopt the alternative mechanism contemplated by s 40(2)(a)(ii) of registering a new organisation to be the amalgamated organisation, that course was not taken. Although the name of the amalgamated organisation was changed to the CFMMEU, that change did not create a new organisation. On the amalgamation day, the members of the de-registering organisations - the MUA and the TCFUA - became members of the CFMEU under para 73(3)(d). Accordingly, the CFMEU was the "amalgamated organisation" at and following the 2018 Amalgamation. As the M&E Division was already a part of the CFMEU and the rules applying to it remained unchanged, it did not "become part of" the CFMEU "as a result of" the 2018 Amalgamation. (Emphasis added.) 31 The applicant submitted that in these paragraphs of Kelly v CFMMEU the Full Court relied on the significance of the absence of change in the structure of the Mining and Energy Division in contrast to the "new Manufacturing Division". The applicant submitted that the reasoning in these passages of the Full Court's judgment supported the submission that the Manufacturing Division became part of the Union as a result of the 2018 amalgamation. 32 As we mentioned above, at [37] of its decision the Commission rejected the applicant's reliance on Kelly v CFMMEU. The Commission held that the Full Court's statements that were relied on by the applicant were directed only to the fact that the Mining and Energy Division was unaffected by the 2018 amalgamation. The applicant submitted to this Court that, accepting that the issue before the Full Court in Kelly v CFMMEU was whether the Mining and Energy Division became part of the Union as a result of the 2018 amalgamation, it was nonetheless permissible to have regard to the reasoning and analysis of the Full Court, as the applicant sought to do.

Consideration 33 By paragraph (c) of the definition of "separately identifiable constituent part", a constituent part of a registered organisation may be a branch, division, or part of the amalgamated organisation that is separately identifiable under the rules of the organisation. A branch, division, or part of a registered organisation will not usually have its own legal personality: see, Williams v Hursey [1959] HCA 51; 103 CLR 30 at 54-55 (Fullagar J, Dixon CJ and Kitto J agreeing), 89-90 (Taylor J), 130 (Menzies J); Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31; 184 CLR 620 at 640-641 (Brennan CJ, Deane and Dawson JJ), 663 (Toohey, McHugh and Gummow JJ). Determining whether a branch or division or other part of a registered organisation is separately identifiable under its rules involves an appraisal of the rules. As we have mentioned, in the case of the Manufacturing Division of the Union, there was no issue that it was a separately identifiable part of the Union under the rules of the Union at the time the application to the Commission was made. The central question for the Commission was whether the Manufacturing Division became a constituent part of the Union as a result of the amalgamation in 2018. 34 The relevant condition in s 100(1) of the RO Act, upon which the Commission must order a ballot, is the existence of the Commission's satisfaction of the several matters set out in s 100(1)(a), (b), (ba), and (c). What is involved in determining whether it reaches that satisfaction will include evaluative judgments. The Commission's satisfaction must be formed in good faith, be capable of being formed by a reasonable decision-maker, be formed in accordance with a correct understanding of the law under which the decision is made, and be untainted by a material breach of any other express or implied conditions of the decision-making function: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430-432 (Latham CJ); Coal Miners' Industrial Union of Workers (WA) v Amalgamated Collieries of Western Australia Ltd [1960] HCA 68; 104 CLR 437 at 446 (Dixon CJ); Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118 (Gibbs J); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [131]-[137] (Gummow J); Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [33] (Gageler and Keane JJ). Subject to these limitations, which are concerned with the legality of the decision, it is for the Commission and not for the Court to be satisfied of the several matters referred to in s 100(1). 35 At the core of the applicant's case is a submission that the Commission misconstrued s 94(1)(a) of the RO Act, thereby challenging whether the Commission made its decision upon the basis of a correct understanding of the law. The particular construction which the applicant submitted was in error was that it was claimed that the Commission imported a requirement that the whole of the Manufacturing Division had to become part of the Union as a result of the amalgamation in 2018; that is, that the Commission imported a requirement that no element of the Manufacturing Division had been a constituent part of the Union prior to the 2018 amalgamation. As senior counsel for the applicant put in oral argument before the Court - Now, what has happened here is that the Commission has held that, because part of the Manufacturing Division had been in the union before amalgamation, that it couldn't be said that the Manufacturing Division - the newly defined constituent part, had become part of the amalgamated organisation as a result of the amalgamation. 36 The Commission certainly considered it to be relevant that parts of the Manufacturing Division had been part of the Union since earlier amalgamations, and considered it relevant that immediately before the amalgamation of the TCFUA in 2018 a significant part of the Manufacturing Division was known as the FFPD. However, the Commission did not make the error in the construction of s 94(1)(a) of the RO Act that the applicant claims. What was decisive to the Commission's decision was its finding at [34] that a new division was not created. That finding was supported by considered reasons that involved a multi-factorial approach to the issue. The Commission at [34]-[35] pointed to the following features of the rule changes in 2018 at the time of the amalgamation to support its conclusion that, in contrast to the new MUA Division, the Manufacturing Division did not become part of the Union as a result of the 2018 amalgamation - (1) members of the TCFUA were allocated to the FFPD; (2) the FFPD was renamed the Manufacturing Division; (3) the officers of the Division were expanded; (4) the structure of the Division was altered to accommodate the merger of the FFPD, including by the creation of a new TCF sector council; (5) the many things that remained unchanged, being the several matters referred to in the extract from the Commission's reasons set out at [24(6)] above; (6) that there was no transitional provision providing for the transfer of funds from the FFPD to the Manufacturing Division; and (7) that all offices of the Division continued pursuant to rule 44(xiii). 37 In circumstances where the divisions and branches of the Union have no separate legal personality, there is no bright line to be drawn between the augmentation and a name change of an existing division, and the creation of a new division as a result of an amalgamation. The analysis in which the Commission engaged was evaluative by reference to the accumulation of detail to which the Commission referred. The conclusion that the Commission reached in relation to its state of satisfaction was one that was well open to it for the reasons that it gave, and it did not involve the error of construction of s 94(1)(a) of the RO Act that the applicant alleges. 38 It remains to consider the applicant's reliance on the Full Court's decision in Kelly v CFMMEU at [138] to which we referred at [29]-[30] above. The Full Court's statement suggesting that a new Manufacturing Division had been created was a passing comment. It was not a finding of fact in relation to an issue that the Full Court was required to determine. Nor was the question before the Commission in this case before the Full Court in Kelly v CFMMEU, which involved a different party, and a different division of the Union, namely the Mining and Energy Division. Section 94(1) in its application to the circumstances of this case required that the Commission be satisfied of the cumulative conditions set out therein. There was no error by the Commission in determining for itself whether it was satisfied that the Manufacturing Division became part of the Union as a result of the 2018 amalgamation by the TCFUA. And there was no error by the Commission in the course of that consideration in rejecting the applicant's reliance on Kelly v CFMMEU on the ground that the statement by the Full Court was made without argument about the proper characterisation of the scheme for the 2018 amalgamation as far as it concerned the Manufacturing Division.

Conclusion 39 The application should be dismissed. 40 The respondent did not seek costs. Subject to any submissions to the contrary, there should be no order as to costs: RO Act, s 329. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Wheelahan and Raper.

Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020(Cth)

Industrial Relations Act 1988(Cth)

Workplace Relations Act 1996(Cth)

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