Johnson v CUB Pty Ltd [2021] FCAFC 219

Johnson v CUB Pty Ltd [2021] FCAFC 219

The Full Bench did not fall into jurisdictional error in concluding that reinstatement to CUB's Abbotsford site was inappropriate. Sections 390 and 391 did not authorise an order that would compel CUB, which was not Mr Johnson's employer and was not shown to be an associated entity of Chelgrave, to surrender its contractual and common law rights to exclude him from its premises. Chelgrave had no contractual power to force CUB to allow Mr Johnson access to the site, so the Commissioner's order was one with which Chelgrave could not comply. The second ground failed as pleaded because the remaining order could be construed as a purported order under s 391(1)(b), and in any event relief would...

Jurisdiction
Australia
Judgment Date
03 December 2021
Procedural Posture
Industrial Law Application for Judicial Review Under S 39 B of the Judiciary Act 1903 (cth) / Final Determination of Originating Application in the Federal Court of Australia
Outcome
Application dismissed.
Legal Topics
['fair Work Commission Reinstatement Orders' 'labour Hire Arrangements' 'jurisdictional Error' 'third Party Contractual Rights' 'principle of Legality' 'fair Work Act 2009 (cth) Ss 390 and 391']
['industrial Law' 'employment and Industrial Relations' 'judicial Review' 'unfair Dismissal'] ['fair Work Commission Reinstatement Orders' 'labour Hire Arrangements' 'jurisdictional Error' 'third Party Contractual Rights' 'principle of Legality' 'fair Work Act 2009 (cth) Ss 390 and 391']

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Procedural Posture

Industrial Law Application for Judicial Review Under S 39 B of the Judiciary Act 1903 (cth) / Final Determination of Originating Application in the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the Full Bench of the Fair Work Commission fell into jurisdictional error by quashing the Commissioner's reinstatement order insofar as it required reinstatement to CUB's brewery site." "Whether ss 390 and 391 of the Fair Work Act 2009 (Cth) empowered a reinstatement order that would require CUB, a non-employer host, to permit Mr Johnson's return despite its contractual and common law rights to exclude him." "Whether the Full Bench made a jurisdictional error by leaving in place only the balance of the Commissioner's reinstatement order after removing the words requiring reinstatement to the CUB site."]

Ratio Decidendi

The Full Bench did not fall into jurisdictional error in concluding that reinstatement to CUB's Abbotsford site was inappropriate. Sections 390 and 391 did not authorise an order that would compel CUB, which was not Mr Johnson's employer and was not shown to be an associated entity of Chelgrave, to surrender its contractual and common law rights to exclude him from its premises. Chelgrave had no contractual power to force CUB to allow Mr Johnson access to the site, so the Commissioner's order was one with which Chelgrave could not comply. The second ground failed as pleaded because the remaining order could be construed as a purported order under s 391(1)(b), and in any event relief would...

Court Disposition

Application dismissed.

Orders

  • ['The originating application be dismissed.']