By Alex Millman and Lindsay Carroll, NRA Legal

In what may be indicative of a growing trend in the trade union movement, Australia’s largest blue-collar unions outside the CFMMEU – United Voice and the National Union of Workers – are progressing their plans to amalgamate and form the fourth-largest union in the country.

Between 24 July and 28 August 2019, members of United Voice (UV) and the National Union of Workers (NUW) will vote to decide whether or not to amalgamate to become the United Workers’ Union (UWU).

This comes at a time when each union is fresh off a disappointing result in the federal election for the trade union movement, and when there remains legislation on foot in the Senate to “change the rules” to make such amalgamations more difficult to implement.

How the case progressed

On 9 April 2019, UV and the NUW lodged a joint application for a ‘community of interest declaration’ under section 43 of the Fair Work (Registered Organisations) Act 2009 (RO Act). This application was scheduled to be heard by Deputy President Gostencnik on 24 May 2019.

On 9 May 2019, UV and the NUW lodged a joint application to submit their amalgamation scheme to a ballot of their members under section 44 of the RO Act. For convenience, the Fair Work Commission listed this application for hearing on 5 June 2019, and pushed back the hearing of the section 43 application so that both could be heard together.

The Federal election during this period proved to be convenient for the unions, as the dates for filing objections to the section 43 application fell in the middle of the election campaign, when those who may have objected to the application had their attention firmly directed elsewhere. As such, when the matter was heard before Deputy President Gostencnik on 5 June 2019, it was unopposed.

At the hearing on 5 June 2019, Deputy President Gostencnik granted both the section 43 and the section 44 applications. The Deputy President ordered that members of UV and the NUW will vote on the proposed amalgamation between 24 July 2019 and 28 August 2019.

Why two application instead of one?

In this case, UV and the NUW have taken a slightly different approach than that taken by the CFMEU, MUA and the TCFUA when they amalgamated to create the CFMMEU.

The CFMMEU amalgamation proceeded under section 44 of the RO Act alone, meaning that a minimum of 25% of the members of the MUA and the TCFUA needed to cast a vote in order to approve the amalgamation. The CFMEU was exempted from balloting its members entirely on the basis that less than 25% of its existing members were eligible for membership of the proposed new entity.

Because there is a significant overlap in the industries and occupations of the members of UV and the NUW, these unions would not be able to seek the same exemption from ballot as was granted to the CFMEU. Instead, they leveraged this overlap to seek a ‘community of interest declaration’ under section 43 of the RO Act.

With this declaration in place, the requirement for a minimum of 25% of the members of each union to cast a vote is removed. Instead, all that is required is that the majority of votes cast – however few – are in favour of the amalgamation. Technically, the amalgamation could pass by the casting of single vote in favour, and all other voters abstaining.

What happens next?

Following the closing of the ballot on 28 August 2019, the Australian Electoral Commission (AEC) must give a report to the parties including the result of the ballot by 18 September 2019.

Members of UV or the NUW who believe that there were irregularities in the conducting of the ballot will then have 30 days in which to make an application to the Federal Court for an inquiry into those irregularities.

Once this 30-day period has expired, or any inquiry by the Federal Court has been dealt with, then and only then will the matter be returned to the Fair Work Commission for Deputy President Gostencnik to set a date on which the amalgamation will take effect.

Assuming all goes smoothly, we will see UV and the NUW replaced by the new UWU by mid-November 2019.

The significance for retailers

An amalgamation of UV and the NUW would significantly increase the power of the new UWU in the supply chain and distribution networks of businesses around the country, making more businesses more vulnerable to industrial action.

With UV and the NUW between them having put 24 proposals for industrial action to ballot in just the last five months, this prospect should not be taken lightly – only the CEPU and the AMWU have proposed more industrial action so far this year, with 27 and 31 proposals respectively.

If approved, the amalgamated union would be larger than the CFMMEU, and smaller only than the SDA, AEU and ANMF, so the potential for coordinated industrial action causing havoc across retail supply chains should not be underestimated.

In such a paradigm, it may be possible for the union movement to leverage their greater power in a more strategic manner as a means to promote change to business and government policy. With Labor’s promised sweeping reforms to industrial relations laws now off the table for the time being, and the Morrison government promising stricter regulation of union activity under a ‘law and order’ manifesto, it remains to be seen what the future holds in this space.