Recent Cases

O’Connor v Construction, Forestry, Mining, Maritime and Energy Union [2023] FCAFC 151 (08 September 2023) (Rangiah, Wheelahan and Raper JJ)


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