Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764

Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764

The Full Bench of Fair Work Australia did not misconstrue s 228 of the Fair Work Act 2009 (Cth); good faith bargaining requires genuine participation with a view to reaching agreement if possible, but does not compel making concessions or agreement on terms. However, the Full Bench erred in making orders (1, 3, and 4) that required Endeavour Coal to state what it would be prepared to agree to or to send a particular representative, as these exceeded the power under s 228(2) and ss 230(4), 231. Order 2, which preserved the status quo of staff contracts during bargaining, was within power.

Parties
Applicant: Endeavour Coal Pty Limited; First Respondent: Association of Professional Engineers, Scientists and Managers, Australia; Second Respondent: Fair Work Australia
Jurisdiction
Australia
Judgment Date
19 July 2012
Procedural Posture
Judicial Review (administrative Law and Industrial Law) / Judgment on Application for Writs of Certiorari and Prohibition
Outcome
Application succeeded in part; Orders 1, 3, and 4 of the Full Bench set aside; Order 2 maintained.
Legal Topics
Good Faith Bargaining, Enterprise Agreements, Bargaining Orders, Jurisdictional Error
Administrative Law Industrial Law Good Faith Bargaining Enterprise Agreements Bargaining Orders Jurisdictional Error

Case Brief

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Parties

Endeavour Coal Pty Limited

Applicant

Association of Professional Engineers, Scientists and Managers, Australia

First Respondent

Fair Work Australia

Second Respondent

Procedural Posture

Judicial Review (administrative Law and Industrial Law) / Judgment on Application for Writs of Certiorari and Prohibition

Legal Issues

  1. 1 Whether the Full Bench of Fair Work Australia misconstrued s 228 of the Fair Work Act 2009 (Cth);
  2. 2 Whether the orders made by Fair Work Australia were within power, having regard to s 228(2) and ss 230(4), 231;
  3. 3 What is required by 'good faith bargaining requirements'.

Ratio Decidendi

The Full Bench of Fair Work Australia did not misconstrue s 228 of the Fair Work Act 2009 (Cth); good faith bargaining requires genuine participation with a view to reaching agreement if possible, but does not compel making concessions or agreement on terms. However, the Full Bench erred in making orders (1, 3, and 4) that required Endeavour Coal to state what it would be prepared to agree to or to send a particular representative, as these exceeded the power under s 228(2) and ss 230(4), 231. Order 2, which preserved the status quo of staff contracts during bargaining, was within power.

Court Disposition

Application succeeded in part; Orders 1, 3, and 4 of the Full Bench set aside; Order 2 maintained.

Orders

  • The parties are to file Short Minutes of Order on or before 2 August 2012 giving effect to these reasons.
  • Orders 1, 3 and 4 of the Full Bench set aside.