Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99

Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99

The Full Bench of the Fair Work Commission did not commit jurisdictional error. On a fair reading, the Deputy President addressed the substance of the required s 443(5) inquiry, was satisfied that third-party impacts on shipping lines and related costs were exceptional circumstances, found those circumstances justified a longer notice period, and exercised the discretion to extend notice from 3 to 5 working days. The Deputy President did not overlook the impact on employees' bargaining power, and Mr Hulme's evidence provided a rational foundation for the decision, so the decision was not legally unreasonable.

Jurisdiction
Australia
Judgment Date
20 June 2019
Procedural Posture
Application for Relief Under S 39 B of the Judiciary Act 1903 (cth), Seeking Writs of Certiorari Quashing Part of a Deputy President's Orders and the Full Bench of the Fair Work Commission's Orders / Reasons for Orders Made by the Full Court Dismissing the Application After Hearing
Outcome
The application was dismissed.
Legal Topics
['protected Action Ballot Order' 'extension of Notice Period for Protected Industrial Action' 'exceptional Circumstances Under S 443(5) of the Fair Work Act 2009 (cth)' 'jurisdictional Error' 'legal Unreasonableness' 'house V the King Error']
['industrial Law' 'employment and Industrial Relations' 'administrative Law'] ['protected Action Ballot Order' 'extension of Notice Period for Protected Industrial Action' 'exceptional Circumstances Under S 443(5) of the Fair Work Act 2009 (cth)' 'jurisdictional Error' 'legal Unreasonableness' 'house V the King Error']

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Procedural Posture

Application for Relief Under S 39 B of the Judiciary Act 1903 (cth), Seeking Writs of Certiorari Quashing Part of a Deputy President's Orders and the Full Bench of the Fair Work Commission's Orders / Reasons for Orders Made by the Full Court Dismissing the Application After Hearing

Legal Issues

  1. 1 ["Whether the Full Bench of the Fair Work Commission's decision was affected by jurisdictional error because it failed to correct alleged jurisdictional errors by the Deputy President." 'Whether the Deputy President found exceptional circumstances but failed to consider whether those circumstances justified a longer notice period and failed to exercise the discretion under s 443(5).' "Whether the Deputy President failed to deal with the CFMMEU's argument that an extended notice period would diminish employees' bargaining power." "Whether the Deputy President's decision was legally unreasonable because of alleged insufficiency of evidence about subcontracting and impacts on shipping lines."]

Ratio Decidendi

The Full Bench of the Fair Work Commission did not commit jurisdictional error. On a fair reading, the Deputy President addressed the substance of the required s 443(5) inquiry, was satisfied that third-party impacts on shipping lines and related costs were exceptional circumstances, found those circumstances justified a longer notice period, and exercised the discretion to extend notice from 3 to 5 working days. The Deputy President did not overlook the impact on employees' bargaining power, and Mr Hulme's evidence provided a rational foundation for the decision, so the decision was not legally unreasonable.

Court Disposition

The application was dismissed.

Orders

  • ['The application be dismissed.' "In the event that either party wishes to make an application for costs, that party must file and serve written submissions (limited to 2 pages) within 7 days of the delivery of the Full Court's reasons, and the other party must file and serve its written submissions (limited to 2...