Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101

Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101

A valid application for a bargaining order under ss 229 and 230 of the Fair Work Act 2009 (Cth) required the CFMMEU to be a bargaining representative, which turned on whether it was entitled under its Rules to represent Mr Lambert's industrial interests. Construing rule 2(E)(a) in context and by reference to the primary purpose of Mr Lambert's employment, Mr Lambert was employed as a Warehouse Operator to perform tasks connected with receiving, storing, picking and despatching goods, and his use of forklifts was a function directed to that purpose. He was not a forklift driver within the meaning of the eligibility rule. The CFMMEU was therefore not entitled to represent his industrial...

Jurisdiction
Australia
Judgment Date
09 June 2022
Procedural Posture
Application for Judicial Review Seeking Constitutional Writs of Certiorari and Mandamus / Full Court of the Federal Court Review of Fair Work Commission Primary Decision and Appeal Decision
Outcome
The application was dismissed.
Legal Topics
['bargaining Orders' 'good Faith Bargaining Requirements' 'bargaining Representatives' 'union Eligibility Rules' 'standing' 'jurisdictional Error' 'jurisdictional Fact']
['industrial Law' 'employment and Industrial Relations' 'administrative Law'] ['bargaining Orders' 'good Faith Bargaining Requirements' 'bargaining Representatives' 'union Eligibility Rules' 'standing' 'jurisdictional Error' 'jurisdictional Fact']

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Procedural Posture

Application for Judicial Review Seeking Constitutional Writs of Certiorari and Mandamus / Full Court of the Federal Court Review of Fair Work Commission Primary Decision and Appeal Decision

Legal Issues

  1. 1 ['Whether the Fair Work Commission wrongly denied jurisdiction by finding that the CFMMEU lacked standing to apply for a bargaining order under s 229 of the Fair Work Act 2009 (Cth).' 'Whether the existence of a valid application for a bargaining order under s 230(1) was a jurisdictional fact for the Court to determine.' 'Whether the CFMMEU was entitled under rule 2(E)(a) of its Rules to represent the industrial interests of Mr Lambert as a forklift driver.' 'Whether Mr Lambert was a forklift driver within the meaning of the CFMMEU eligibility rule or instead a Warehouse Operator whose use of forklifts was directed to warehouse tasks.']

Ratio Decidendi

A valid application for a bargaining order under ss 229 and 230 of the Fair Work Act 2009 (Cth) required the CFMMEU to be a bargaining representative, which turned on whether it was entitled under its Rules to represent Mr Lambert's industrial interests. Construing rule 2(E)(a) in context and by reference to the primary purpose of Mr Lambert's employment, Mr Lambert was employed as a Warehouse Operator to perform tasks connected with receiving, storing, picking and despatching goods, and his use of forklifts was a function directed to that purpose. He was not a forklift driver within the meaning of the eligibility rule. The CFMMEU was therefore not entitled to represent his industrial...

Court Disposition

The application was dismissed.

Orders

  • ["The applicant's originating application for the issue of Constitutional writs be dismissed."]