Construction, Forestry, Maritime, Mining and Energy Union v Duluxgroup (Australia) Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 07 April 2022
• Neutral Citation: [2022] FCA 357
• Date: 07 April 2022
• Court: Federal Court

Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Duluxgroup (Australia) Pty Ltd [2022] FCA 357

File number(s):	QUD 382 of 2021
Judgment of:	COLLIER J
Date of judgment:	7 April 2022
Catchwords:	PRACTICE AND PROCEDURE – joinder application by a third party under r 1.02 of the Federal Court Rules 2011 (Cth) – whether joinder is necessary to ensure that each issue in dispute is heard and finally determined – whether joinder necessary to avoid multiplicity of proceedings – third party unable to demonstrate a direct material effect on its legal interests as a result of the present proceeding – application for joinder dismissed ; PRACTICE AND PROCEDURE – alterative application for leave to intervene made by a third party under r 9.12 of the Federal Court Rules 2011 (Cth) – whether contribution would be different from the parties and useful – whether intervention would interfere with the parties’ ability to conduct proceedings – whether any direct or indirect right of the third party – whereas the content of the third party’s submissions is unclear – whereas intervention would hinder the conduct of the substantive matter – no identification of direct or indirect interests affected – application for intervention dismissed
Legislation:	Fair Work (Registered Organisations) Act 2009 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786 Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd t/a DuluxGroup [2021] FWCFB 6020 Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48 ECAP Finance Pty Ltd v Ottoway Engineering Pty Ltd [2017] FCA 237 Federated Engine Drivers and Firemen’s Union WA v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794 Grant v BHP Coal Pty Ltd [2015] FCA 329 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Levy v Victoria [1997] HCA 31 Kadam v MiiResorts Group 1 Pty Ltd [2016] FCA 1205 Karellas Investments Pty Ltd v FW Projects Pty Limited (in liq) [2021] FCA 870 McAlister v State of New South Wales [2014] FCA 702 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 3) [2015] FCA 542 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Re Coldham and Others, Ex parte Australian Workers’ Union [1984] HCA 62 Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37
Division:	General Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	55
Date of hearing:	5 April 2022
Counsel for the Applicant:	Mr W Friend SC with Mr C Massy
Solicitor for the Applicant:	Construction, Forestry, Maritime, Mining and Energy Union
Counsel for the First Respondent:	Mr J Murdoch QC with Mr T Spence
Solicitor for the First Respondent:	Herbert Smith Freehills
Counsel for the Prospective Third Respondent:	Mr H Borenstein QC with Mr Y Bakri
Solicitor for the Prospective Third Respondent:	United Workers Union

ORDERS

		QUD 382 of 2021
BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Applicant
AND:	DULUXGROUP (AUSTRALIA) PTY LTD First Respondent ; FAIR WORK COMMISSION Second Respondent
	UNITED WORKERS UNION Prospective Third Respondent

order made by:	COLLIER J
DATE OF ORDER:	7 APRIL 2022

THE COURT ORDERS THAT:

1. The interlocutory application filed by the United Workers’ Union on 21 March 2022 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J

1. This interlocutory proceeding concerns an application for joinder, or alternatively an order for leave to intervene, made by the United Workers Union (UWU) in respect of proceedings currently on foot between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Duluxgroup (Australia) Pty Ltd (Duluxgroup). In summary, the substantive matter before the Full Court concerns an application for writs of certiorari and mandamus in respect of decisions of the Fair Work Commission (second respondent or FWC). Those decisions were to the effect that the applicant was unable to prosecute a claim for bargaining orders, as it was not eligible to ‘enrol as a member a person employed by the Respondent’.

2. In the interlocutory application filed on 21 March 2022, the UWU sought the following orders:

1. Pursuant to Rule 1.32 of the Federal Court Rules 2011, an order that the United Workers’ Union be joined as a respondent in this proceeding.

2. Alternatively, pursuant to Rule 9.12 of the Federal Court Rules 2011, the United Workers’ Union be granted leave to intervene in this proceeding with such rights, privileges and liabilities as those of a party to the proceeding.

3. Such further or other orders as the Court considers appropriate.

3. For reasons which follow I consider that the interlocutory application should be dismissed, and the relief sought by the UWU refused.

background

4. The UWU is a registered organisation of employees within the meaning of s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth)(FW Act), and consequently is governed by rules that are registered with the FWC. Those rules provide that, inter alia, the UWU is permitted to enrol and industrially represent individuals who are employed in the ‘paint industry’.

5. An issue before the FWC at first instance was the relevant union membership of a Duluxgroup employee at the manufacturing facility located in Rocklea, Queensland, Mr Wayne Lambert had been a member of the UWU up until he became a member of the applicant. Mr Lambert, and other individuals employed by the first respondent at its Rocklea site, were subject to the Dulux Rocklea Enterprise Agreement 2016 (enterprise agreement). Since November 2019, the UWU had been involved in negotiating a subsequent enterprise agreement with Duluxgroup. To this end the applicant applied to the FWC for enterprise bargaining orders under s 229 of the FW Act.

6. Section 176(3) of the FW Act relevantly provides:

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

7. In Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786, decided on 2 July 2021, the FWC, constituted by a Deputy President, found that the CFMMEU did not have standing to make an application for a bargaining order under s 229 of the FW Act in relation to a proposed enterprise agreement between Duluxgroup and employees at its Rocklea site. The FWC concluded that the CFMMEU was not entitled under its rules to represent the industrial interests of Mr Lambert, for whom the CFMMEU purported to be acting as bargaining representative and upon whom the CFMMEU relied to demonstrate its capacity to bring its application.

8. At [6] the Deputy President said as follows:

Other bargaining...