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

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

The Mining and Energy Division is a 'constituent part' of the CFMMEU because it is a separately identifiable division under the rules; however, it did not 'become part of' the CFMMEU as a result of the 2018 Amalgamation—rather, it was already part of the CFMEU before that time. Accordingly, no valid application for withdrawal could be made under s 94(1), and the Commission did not err in dismissing the application.

Jurisdiction
Australia
Judgment Date
08 August 2022
Procedural Posture
Judicial Review / Appellate Judgment
Outcome
Application dismissed
Legal Topics
['amalgamation of Registered Organisations' 'withdrawal From Amalgamated Organisations' 'statutory Interpretation' 'judicial Review']
['industrial Law' 'employment Law'] ['amalgamation of Registered Organisations' 'withdrawal From Amalgamated Organisations' 'statutory Interpretation' 'judicial Review']

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Procedural Posture

Judicial Review / Appellate Judgment

Legal Issues

  1. 1 ["Whether the Commission erred in finding that the Mining and Energy Division did not 'become part of' the CFMMEU as a result of the 2018 Amalgamation for the purposes of s 94(1) of the Fair Work (Registered Organisations) Act 2009 (Cth)" "Whether the Mining and Energy Division is a 'constituent part' of the CFMMEU for the purposes of s 94"]

Ratio Decidendi

The Mining and Energy Division is a 'constituent part' of the CFMMEU because it is a separately identifiable division under the rules; however, it did not 'become part of' the CFMMEU as a result of the 2018 Amalgamation—rather, it was already part of the CFMEU before that time. Accordingly, no valid application for withdrawal could be made under s 94(1), and the Commission did not err in dismissing the application.

Court Disposition

Application dismissed

Orders

  • ['The application be dismissed.' 'No order as to costs.']