O'Connor v Construction, Forestry, Mining, Maritime and Energy Union [2023] FCAFC 151

Federal Court of Australia

O'Connor v Construction, Forestry, Mining, Maritime and Energy Union [2023] FCAFC 151 File number(s): VID 92 of 2023

Judgment of: RANGIAH, WHEELAHAN AND RAPER JJ

Date of judgment: 8 September 2023

Catchwords: INDUSTRIAL LAW – application for judicial review of a decision of the Full Bench of the Fair Work Commission dismissing applicant's application under s 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) for secret ballot to be held to decide whether the Manufacturing Division of respondent Union should withdraw from that Union – where amalgamation of Union with other registered organisations in 2018 – where applicant alleges that Full Bench erred in construction of s 94(1)(a) of the Act by treating that provision as meaning that "a constituent part" of an "amalgamated organisation" only "became part" of that organisation "as a result of" amalgamation where entirety of that part came to be part of organisation at amalgamation – where applicant contended that Full Bench should have followed a decision of the Full Court in Kelly v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 130 that amalgamation created "a new Manufacturing Division" – Full Bench's duty to order a secret ballot contingent upon state of satisfaction as to whether application validly made under s 94 – Full Bench conducted multi-factorial evaluative analysis and did not reach such positive satisfaction – Full Bench's evaluation and conclusion permissible – Full Bench not bound to follow Kelly as claimed – application for judicial review dismissed

Legislation: Fair Work (Registered Organisations) Act 2009 (Cth), Chapter 3 Parts 2 and 3, ss 44, 92, 93, 94, 94A, 95, 100, 108A, 109, 329 Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020 (Cth) Federal Court of Australia Act 1976 (Cth), s 20(1A) Industrial Relations Act 1988 (Cth) Workplace Relations Act 1996 (Cth)