Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595

Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595

The Union's application failed because the Full Bench of the Fair Work Commission, having only refused permission to appeal, did not make an operative final and binding determination of the jurisdictional questions; the operative award remained the Deputy President's decision, and the Union accepted that the Deputy President had no authority to determine finally the limits of jurisdiction. The Maersk enterprise agreement did not confer authority on the Fair Work Commission to determine the limits of its own jurisdiction, and Maersk's pursuit in the Federal Court of a jurisdictional challenge to the private arbitral award was not an abuse of process.

Jurisdiction
Australia
Judgment Date
06 May 2020
Procedural Posture
Industrial Law Proceeding Concerning Jurisdiction of the Fair Work Commission in an Enterprise Agreement Arbitration / Interlocutory Application by the First Respondent to Set Aside the Originating Application Under R 13.01 of the Federal Court Rules 2011 (cth)
Outcome
The First Respondent's interlocutory application dated 12 March 2020 should be dismissed, and the matter should be programmed for hearing.
Legal Topics
['enterprise Agreement Dispute Resolution' 'fair Work Commission Private Arbitration' 'permission to Appeal to Full Bench of the Fair Work Commission' 'jurisdictional Challenge' 'abuse of Process']
['industrial Law' 'employment and Industrial Relations' 'administrative Law' 'arbitration'] ['enterprise Agreement Dispute Resolution' 'fair Work Commission Private Arbitration' 'permission to Appeal to Full Bench of the Fair Work Commission' 'jurisdictional Challenge' 'abuse of Process']

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Procedural Posture

Industrial Law Proceeding Concerning Jurisdiction of the Fair Work Commission in an Enterprise Agreement Arbitration / Interlocutory Application by the First Respondent to Set Aside the Originating Application Under R 13.01 of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ["Whether the Federal Court lacked jurisdiction to hear Maersk's claim that the Fair Work Commission acted beyond jurisdiction in a private arbitration under the Maersk enterprise agreement." 'Whether the Full Bench of the Fair Work Commission finally determined the jurisdictional questions when it refused permission to appeal.' "Whether Maersk's Federal Court proceeding was an abuse of process because it had raised the same jurisdictional issues before the Fair Work Commission." 'Whether the Maersk enterprise agreement conferred authority on the Fair Work Commission to determine finally the limits of its own arbitral jurisdiction.']

Ratio Decidendi

The Union's application failed because the Full Bench of the Fair Work Commission, having only refused permission to appeal, did not make an operative final and binding determination of the jurisdictional questions; the operative award remained the Deputy President's decision, and the Union accepted that the Deputy President had no authority to determine finally the limits of jurisdiction. The Maersk enterprise agreement did not confer authority on the Fair Work Commission to determine the limits of its own jurisdiction, and Maersk's pursuit in the Federal Court of a jurisdictional challenge to the private arbitral award was not an abuse of process.

Court Disposition

The First Respondent's interlocutory application dated 12 March 2020 should be dismissed, and the matter should be programmed for hearing.

Orders

  • ['On or before 17 May 2020, the parties do bring in an agreed minute, or competing minutes if agreement cannot be reached, as to the orders to be made on the interlocutory application and orders programming the matter for hearing.']