Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamation) Act 2024

The Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamation) Act 2024 amends the Fair Work (Registered Organisations) Act 2009 to create a special process for the Manufacturing Division of the CFMEU to withdraw from the amalgamated organisation.

The Act is tightly targeted. It is about permitting certain members of the CFMEU to withdraw through the Manufacturing Division pathway. It does not create a broad new withdrawal option for all registered organisations or all CFMEU divisions.

The legislation inserts a new Schedule 3 into the registered organisations law. That Schedule sets out definitions, a joint written notice process, an application process for a secret ballot, special rules about how the older version of the law applies, and restrictions designed to reduce overlap between the CFMEU and any new organisation created by the withdrawal.

The main legal actors under this Act are the CFMEU, the committee of management of the Manufacturing Division, the Minister and the Fair Work Commission. The Act also refers to a possible new organisation that may be registered if the withdrawal succeeds.

For businesses, the Act is most relevant if your workforce may be covered by the Manufacturing Division eligibility rules, if you already deal with the CFMEU in bargaining or disputes, or if your operations sit across manufacturing and construction where coverage questions can become more complicated.

Most employers are not directly required by this Act to lodge documents or take procedural steps. However, employers can be affected in practice if union representation changes, if there is uncertainty about which organisation covers employees, or if bargaining and consultation need to be redirected to a different registered organisation.

Businesses that are usually outside the practical impact are those with no union presence, no CFMEU dealings, or workforces clearly outside the relevant eligibility rules. Even then, national or mixed-industry employers should still be careful if only part of the business may be affected.

The process starts if the Manufacturing Division is proposing to withdraw from the CFMEU. The Act then allows the CFMEU and the committee of management of the Manufacturing Division to give the Minister a joint written notice.

That joint notice may include the proposed name and rules for the new organisation, the proposed name and altered rules for the CFMEU once withdrawal takes effect, and details of any overlap between the proposed eligibility rules. If there is overlap, the notice must also include undertakings about how the Manufacturing Division and the CFMEU will avoid demarcation disputes.

The joint notice must state that the two sides have reached agreement on the name of the CFMEU after withdrawal, the eligibility rules proposed for the new organisation, and the eligibility rules proposed for the CFMEU after alteration. It must also be signed by authorised persons for each side.

Separately, the Act allows an application to the Fair Work Commission for a secret ballot to decide whether the Manufacturing Division should withdraw from the CFMEU. That application could not be made after 31 October 2024. The Act treats that application as though it were made under section 94 of the old Act, subject to the special Schedule.

If a joint written notice was given to the Minister on or before 30 August 2024, the Minister could make a legislative instrument by 31 October 2024 modifying how the old Act and old Regulations applied to the application and related matters. If no joint written notice was given by 30 August 2024, the Act instead switches on a different set of special rules that disapply or modify some old Act and old Regulation requirements.

A technical but important feature of this Act is that it relies on the old Act and old Regulations for the withdrawal process. The old Act means the registered organisations law as it stood immediately before Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 commenced. The note in the legislation says that means the law as in force on 26 February 2024. The old Regulations are the regulations as in force on that same date.

The Act also fixes some eligibility questions by reference to the CFMEU rules as at 2 December 2023. This matters because it reduces the chance that later rule changes could shift the coverage baseline during the withdrawal process.

If no joint written notice was given by the 30 August 2024 deadline, the Act says paragraph 83(b) of the old Regulations works as if the reference to the eligibility rules of the amalgamated organisation immediately before the ballot application were instead a reference to the eligibility rules of the amalgamated organisation as at 2 December 2023.

The Act also sets out, in modified form, what the eligibility rules of the new organisation must reflect by reference to specified CFMEU rules as at 2 December 2023, with stated exclusions. At the same time, it requires that the CFMEU eligibility rules as proposed to be altered must not overlap with the eligibility rules of the new organisation when withdrawal takes effect.

For employers, the practical point is simple even though the drafting is technical: do not assume current public descriptions of union coverage tell the whole story. The Act may require eligibility to be assessed against earlier rule settings and special statutory modifications.

The Act is clearly designed to manage the risk that the CFMEU and any new organisation could both claim the same workers. It deals with this in several ways.

First, if the proposed rules overlap, the joint written notice must include details of the overlap and undertakings about how demarcation disputes will be avoided. A demarcation dispute is a dispute about which union is entitled to represent particular employees, jobs or industries.

Second, where the special modified eligibility provisions apply, the new organisation's eligibility rules must reflect specified CFMEU rules as at 2 December 2023, subject to the exclusions written into the Act. The CFMEU's altered eligibility rules must not overlap with the new organisation's eligibility rules when withdrawal takes effect.

Third, if the Manufacturing Division withdraws, the Act restricts later overlapping changes. Before 1 January 2034, the Fair Work Commission or the General Manager must not consent to an alteration of the CFMEU eligibility rules if satisfied that the alteration would create overlap with the new organisation and the new organisation has objected.

This freeze is important for employers because it is intended to preserve stability for a long period after any withdrawal. In practical terms, businesses should understand that the legislation aims to lock in a non-overlapping position unless both organisations agree to changes or the statutory conditions for refusal are not met.

The Act contains some additional special rules. If the application sought orders from the Fair Work Commission for the vote of constituent members to be done in whole or in part by attendance ballot, the Act says the Commission must make those orders, despite the old Act and old Regulations.

The Act also limits how membership transfer rules operate. It states that the old Act provision dealing with transfers of membership following withdrawal does not apply in relation to persons who are not eligible to be members of the new organisation. That is another sign that eligibility boundaries are central to the scheme.

For employers, these points are mostly background rather than direct compliance obligations. They matter because they affect how the withdrawal process is administered and who may end up represented by the new organisation if the withdrawal takes effect.

This Act does not automatically change your enterprise agreement, payroll settings or consultation arrangements on its own. It creates a legal pathway for a possible withdrawal and sets the rules for that pathway.

If your business deals with the CFMEU or employees who may fall within the Manufacturing Division coverage, the first question is factual: did the withdrawal process actually proceed to completion and was a new organisation registered? The legislation itself does not answer that on this page.

If the answer is yes, the next questions are operational. Which organisation now covers the relevant employees? Who is the correct bargaining representative? Are your internal records, contact lists and payroll deduction settings still accurate? Do any current disputes or consultation processes need to be redirected?

Businesses should also be careful with mixed workforces. A company may have manufacturing employees, construction employees and labour hire workers on the same site or across related entities. In that setting, assumptions about union coverage can create avoidable conflict. The Act's focus on overlap and demarcation shows that these boundary issues are a real part of the legislative design.

Before relying on this page, check the current registration status of the relevant organisation, the current rules of the CFMEU and any successor organisation, and the actual work performed by the employees in question.

The Act received Royal Assent on 9 July 2024 and commenced on the day after Royal Assent, being 10 July 2024.

The legislation set two key process deadlines. A joint written notice to the Minister had to be given on or before 30 August 2024 for the Minister to have the option of making a modifying determination. An application for a secret ballot could not be made after 31 October 2024. A Ministerial determination under the relevant clause also could not be made after 31 October 2024.

The long-stop stability date in the Act is 1 January 2034. If the Manufacturing Division withdraws, the Act restricts consent to certain overlapping CFMEU eligibility rule changes before that date where the new organisation objects.

The Act is in force. What this page cannot confirm by itself is the later factual outcome of the withdrawal process.