CSR Limited v CSR & Holcim Staff Association [2015] FCAFC 95

CSR Limited v CSR & Holcim Staff Association [2015] FCAFC 95

The Commission's decision was affected by jurisdictional error because, when deciding not to make a modern enterprise award, it failed to take into account the modern awards objective in s 134(1) of the Fair Work Act 2009 (Cth) as required by item 6 of Sch 6 to the TP Act, except possibly the need to encourage collective bargaining. Under Yum!, that objective formed part of the single decision-making process for deciding whether or not to make a modern enterprise award. The matter was therefore a proper case for certiorari and mandamus.

Jurisdiction
Australia
Judgment Date
01 July 2015
Procedural Posture
Application for Writs of Certiorari and Mandamus in the Fair Work Division / Judgment on Application for Judicial Review of Fair Work Commission Decision
Outcome
Application granted; Fair Work Commission decision quashed and matter remitted for determination according to law.
Legal Topics
['transitional Instruments' 'modern Enterprise Awards' 'modern Awards Objective' 'enterprise Instrument Modernisation Process' 'jurisdictional Error' 'certiorari' 'mandamus']
['industrial Law'] ['transitional Instruments' 'modern Enterprise Awards' 'modern Awards Objective' 'enterprise Instrument Modernisation Process' 'jurisdictional Error' 'certiorari' 'mandamus']

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Procedural Posture

Application for Writs of Certiorari and Mandamus in the Fair Work Division / Judgment on Application for Judicial Review of Fair Work Commission Decision

Legal Issues

  1. 1 ['Whether the Fair Work Commission was required to take into account the modern awards objective in s 134(1) of the Fair Work Act 2009 (Cth) when deciding whether or not to make a modern enterprise award under item 4 of Sch 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).' 'Whether the Commission failed to take into account mandatory considerations in s 134(1) of the Fair Work Act 2009 (Cth), other than the need to encourage collective bargaining.' "Whether the Commission's conclusion about likely quick collective bargaining if no modern enterprise award were made was illogical, irrational or unreasonable in a jurisdictional sense."]

Ratio Decidendi

The Commission's decision was affected by jurisdictional error because, when deciding not to make a modern enterprise award, it failed to take into account the modern awards objective in s 134(1) of the Fair Work Act 2009 (Cth) as required by item 6 of Sch 6 to the TP Act, except possibly the need to encourage collective bargaining. Under Yum!, that objective formed part of the single decision-making process for deciding whether or not to make a modern enterprise award. The matter was therefore a proper case for certiorari and mandamus.

Court Disposition

Application granted; Fair Work Commission decision quashed and matter remitted for determination according to law.

Orders

  • ['A writ of certiorari issue directed to the second respondent quashing its decision made on 15 December 2014 not to make a modern enterprise award under item 4 of Sch 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).' "A writ of mandamus issue directed to the second...