All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union [2017] FCAFC 189

All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union [2017] FCAFC 189

The Commission did not commit jurisdictional error. The relevant NAPSAs/ABTIs terminated on 1 January 2014 by operation of item 20 of Sch 3 to the Transitional Act and, under item 21, could never again cover employees. Item 16 of Sch 5 did not modify item 20; it only displaced item 29 of Sch 3 and, through item 16(5), affected application rather than coverage of modern awards. Because s 193 of the Fair Work Act requires the BOOT to be applied by reference to modern award coverage, and the employees were covered by modern awards within s 48, the modern awards were the correct comparator instruments for the 2015 agreement.

Jurisdiction
Australia
Judgment Date
27 November 2017
Procedural Posture
Application for Review of Decisions of the Fair Work Commission Concerning Approval of an Enterprise Agreement / Further Amended Originating Application in the Federal Court Seeking Declarations, Certiorari and Mandamus After a Fair Work Commission Full Bench Dismissed an Appeal From a Commissioner's Decision
Outcome
Application dismissed.
Legal Topics
['better Off Overall Test' 'enterprise Agreement Approval' 'modern Awards' 'award Based Transitional Instruments' 'notional Agreements Preserving State Awards' 'coverage and Application of Industrial Instruments' 'fair Work Transitional Provisions' 'jurisdictional Error']
['industrial Law' 'employment and Industrial Relations'] ['better Off Overall Test' 'enterprise Agreement Approval' 'modern Awards' 'award Based Transitional Instruments' 'notional Agreements Preserving State Awards' 'coverage and Application of Industrial Instruments' 'fair Work Transitional Provisions' 'jurisdictional Error']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Review of Decisions of the Fair Work Commission Concerning Approval of an Enterprise Agreement / Further Amended Originating Application in the Federal Court Seeking Declarations, Certiorari and Mandamus After a Fair Work Commission Full Bench Dismissed an Appeal From a Commissioner's Decision

Legal Issues

  1. 1 ['Whether the relevant NAPSAs/ABTIs continued to cover employees after 1 January 2014 or terminated under the sunsetting provisions in item 20 of Sch 3 to the Transitional Act.' 'Whether item 16 of Sch 5, inserted by reg 3B.02, modified or displaced item 20 of Sch 3 so as to preserve the legal existence or coverage of the relevant ABTIs beyond 1 January 2014.' 'Whether item 16(5) displaced coverage, as distinct from application, of modern awards for the purposes of s 193 of the Fair Work Act 2009 (Cth).' 'Whether the modern awards or the ABTIs were the proper comparator instruments for applying the BOOT to the All Trades Queensland Pty Ltd Apprentice/Trainee Enterprise Agreement 2015.' 'Whether the Commissioner or Full Bench committed jurisdictional error by requiring the BOOT to be conducted by reference to modern awards.']

Ratio Decidendi

The Commission did not commit jurisdictional error. The relevant NAPSAs/ABTIs terminated on 1 January 2014 by operation of item 20 of Sch 3 to the Transitional Act and, under item 21, could never again cover employees. Item 16 of Sch 5 did not modify item 20; it only displaced item 29 of Sch 3 and, through item 16(5), affected application rather than coverage of modern awards. Because s 193 of the Fair Work Act requires the BOOT to be applied by reference to modern award coverage, and the employees were covered by modern awards within s 48, the modern awards were the correct comparator instruments for the 2015 agreement.

Court Disposition

Application dismissed.

Orders

  • ["The applicants' further amended originating application dated 6 June 2017 be dismissed." 'The Court will hear from the parties as to the question of costs.']