Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd [2017] FCAFC 179

Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd [2017] FCAFC 179

The Full Bench did not err in its construction of clause 3 or overlook the single enterprise requirement, but it erred in law by quashing the Commissioner's refusal to approve the enterprise agreement without considering the independent statutory grounds that the employees covered by the agreement were not fairly chosen and that the agreement had not been genuinely agreed to. Because those grounds were substantial, argued before the Commissioner and Full Bench, and concerned cumulative criteria under s 186, the Union was entitled to certiorari quashing the Full Bench decision and mandamus requiring a Full Bench to determine the outstanding appeal grounds according to law.

Jurisdiction
Australia
Judgment Date
09 November 2017
Procedural Posture
Application for Relief Under S 39 B of the Judiciary Act 1903 (cth), Ss 562 and 563 of the Fair Work Act 2009 (cth), and Ss 21, 22 and 23 of the Federal Court Act 1976 (cth) / Judicial Review of a Fair Work Commission Full Bench Decision Quashing a Commissioner's Refusal to Approve an Enterprise Agreement
Outcome
Application granted; Full Bench decision of the Fair Work Commission quashed and matter remitted to a Full Bench of the Fair Work Commission to determine grounds 2-7 according to law.
Legal Topics
['enterprise Agreements' 'fair Work Commission Approval of Enterprise Agreements' 'genuine Agreement' 'fairly Chosen Employees' 'single Enterprise' 'jurisdictional Error' 'certiorari' 'mandamus']
['industrial Law' 'employment and Industrial Relations' 'administrative Law'] ['enterprise Agreements' 'fair Work Commission Approval of Enterprise Agreements' 'genuine Agreement' 'fairly Chosen Employees' 'single Enterprise' 'jurisdictional Error' 'certiorari' 'mandamus']

Case Brief

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Procedural Posture

Application for Relief Under S 39 B of the Judiciary Act 1903 (cth), Ss 562 and 563 of the Fair Work Act 2009 (cth), and Ss 21, 22 and 23 of the Federal Court Act 1976 (cth) / Judicial Review of a Fair Work Commission Full Bench Decision Quashing a Commissioner's Refusal to Approve an Enterprise Agreement

Legal Issues

  1. 1 ['Whether the Full Bench misconstrued clause 3 of the enterprise agreement by overlooking the requirement that the Mt Pleasant Mine Project be a single enterprise within s 168A(3)(a) of the Fair Work Act 2009 (Cth).' "Whether the Full Bench erred in quashing the Commissioner's decision without considering the separate grounds that the group of employees covered by the agreement was not fairly chosen and that the agreement had not been genuinely agreed to." 'Whether relief in the nature of certiorari and mandamus should issue.']

Ratio Decidendi

The Full Bench did not err in its construction of clause 3 or overlook the single enterprise requirement, but it erred in law by quashing the Commissioner's refusal to approve the enterprise agreement without considering the independent statutory grounds that the employees covered by the agreement were not fairly chosen and that the agreement had not been genuinely agreed to. Because those grounds were substantial, argued before the Commissioner and Full Bench, and concerned cumulative criteria under s 186, the Union was entitled to certiorari quashing the Full Bench decision and mandamus requiring a Full Bench to determine the outstanding appeal grounds according to law.

Court Disposition

Application granted; Full Bench decision of the Fair Work Commission quashed and matter remitted to a Full Bench of the Fair Work Commission to determine grounds 2-7 according to law.

Orders

  • ['A writ in the nature of certiorari issue to remove into this Court so far as is necessary proceedings C2017/1073 in the Fair Work Commission for the purpose of quashing the Decision of the Second Respondent made on 23 May 2017 in Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FWCFB 2459.'...