Kelly v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 130

Federal Court of Australia

Kelly v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 130 Review of: Re Kelly [2021] FWCFB 6002; 310 IR 270

File number: VID 541 of 2021

Judgment of: KATZMANN, RANGIAH AND O'CALLAGHAN JJ

Date of judgment: 8 August 2022

Catchwords: INDUSTRIAL LAW – application for judicial review of a decision of the Fair Work Commission dismissing applicant's application under s 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) for a secret ballot to be held to decide whether the Mining and Energy Division of the respondent Union should withdraw from the organisation – whether the Commission erred in finding that the Division became part of the organisation as a result of an amalgamation outside the period prescribed in s 94 for making an application – whether in any event, the Division is not a constituent part of the Union for the purposes of s 94

Legislation: Acts Interpretation Act 1901 (Cth) ss15AA, 15AB(1) Conciliation and Arbitration Act 1904 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) ss 5, 6, 18, 27, 35, 40, 40(1), 40(2), 40(2)(a), 40(2)(a)(i), 40(2)(a)(ii), 40(2)(a)(iii), 40(2)(b), 40(2)(c), 40(2)(d), 42, 70, 73, 73(1), 73(2), 73(3), 73(3)(a), 73(3)(b), 73(3)(c), 73(3)(d), 92, 92(a), 92(b), 93, 93(1), 93(4), 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(3), 94A, 100, 100(1), 140, 140(1), 141 Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020 (Cth) Industrial Relations Act 1988 (Cth) Industrial Relations Legislation Amendment Act 1991 (Cth) Workplace Relations Act 1996 (Cth) Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 (Cth) Explanatory Memorandum to the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 (Cth)