J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53

J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53

Section 443(1) of the Fair Work Act 2009 (Cth) contains only the express preconditions that an application be made under s 437 and that FWA be satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer. The text, context and statutory purpose did not warrant reading in an additional requirement that bargaining have commenced under Pt 2-4 or s 173. Because the Transport Workers' Union had approached J.J. Richards, identified the general ambit of the proposed enterprise agreement, and received J.J. Richards' response, FWA was entitled to conclude that the statutory precondition was satisfied. The FWA decisions were valid exercises of power and...

Jurisdiction
Australia
Judgment Date
20 April 2012
Procedural Posture
Application for Writs of Certiorari and Mandamus in Respect of Decisions of Fair Work Australia Under the Fair Work Act 2009 (cth) Concerning a Protected Action Ballot Order / Full Court Determination of Application Challenging Fair Work Australia Decisions Made on 16 February 2011 and 1 June 2011
Outcome
Application dismissed; no orders as to costs.
Legal Topics
['protected Action Ballot Order' 'enterprise Bargaining' 'industrial Action' 'certiorari and Mandamus' 'discretionary Refusal of Relief' 'construction of S 443 of the Fair Work Act 2009 (cth)']
['industrial Law' 'administrative Law' 'statutory Construction'] ['protected Action Ballot Order' 'enterprise Bargaining' 'industrial Action' 'certiorari and Mandamus' 'discretionary Refusal of Relief' 'construction of S 443 of the Fair Work Act 2009 (cth)']

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Procedural Posture

Application for Writs of Certiorari and Mandamus in Respect of Decisions of Fair Work Australia Under the Fair Work Act 2009 (cth) Concerning a Protected Action Ballot Order / Full Court Determination of Application Challenging Fair Work Australia Decisions Made on 16 February 2011 and 1 June 2011

Legal Issues

  1. 1 ['Whether s 443(1) of the Fair Work Act 2009 (Cth) permits Fair Work Australia to make a protected action ballot order where bargaining with the employer has not commenced.' 'Whether Fair Work Australia committed jurisdictional error by construing s 443(1)(b) as requiring only that each applicant had been, and was, genuinely trying to reach an agreement with the employer.' 'Whether relief in the nature of certiorari and mandamus should be refused in the exercise of discretion for lack of utility.']

Ratio Decidendi

Section 443(1) of the Fair Work Act 2009 (Cth) contains only the express preconditions that an application be made under s 437 and that FWA be satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer. The text, context and statutory purpose did not warrant reading in an additional requirement that bargaining have commenced under Pt 2-4 or s 173. Because the Transport Workers' Union had approached J.J. Richards, identified the general ambit of the proposed enterprise agreement, and received J.J. Richards' response, FWA was entitled to conclude that the statutory precondition was satisfied. The FWA decisions were valid exercises of power and...

Court Disposition

Application dismissed; no orders as to costs.

Orders

  • ['The application be dismissed.' 'There be no orders as to costs.']