Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCAFC 231

Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCAFC 231

An agreement between the parties (the July Agreement) that purports to settle a dispute about manning levels under an enterprise agreement cannot, absent a formal variation approved under the Fair Work Act, remove the FWC's arbitral authority where a factual dispute remains unresolved and the procedural steps in the enterprise agreement have been followed. The statutory character of enterprise agreements precludes the parties from contracting out of or compromising statutory rights and dispute resolution mechanisms conferred by the agreement and the Act.

Jurisdiction
Australia
Judgment Date
17 December 2021
Procedural Posture
Appeal / Appeal Judgment of the Full Court After Dismissal of Application at First Instance
Outcome
Appeal dismissed
Legal Topics
['jurisdiction of Fair Work Commission' 'enterprise Agreements' 'dispute Resolution Procedures' 'fair Work Act Construction' 'accord and Satisfaction in Industrial Context']
['industrial Law' 'employment Law' 'administrative Law'] ['jurisdiction of Fair Work Commission' 'enterprise Agreements' 'dispute Resolution Procedures' 'fair Work Act Construction' 'accord and Satisfaction in Industrial Context']

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Procedural Posture

Appeal / Appeal Judgment of the Full Court After Dismissal of Application at First Instance

Legal Issues

  1. 1 ['Whether the Fair Work Commission had jurisdiction to arbitrate a dispute concerning manning levels (extra steward) under s 739(4) of the Fair Work Act 2009 (Cth) despite a separate agreement between the union and employer' "Whether an agreement between the parties (the July Agreement) precluded the existence of a 'dispute' under the Act and the enterprise agreement's resolution procedures" 'Whether such an agreement could modify the enterprise agreement or the dispute resolution procedure']

Ratio Decidendi

An agreement between the parties (the July Agreement) that purports to settle a dispute about manning levels under an enterprise agreement cannot, absent a formal variation approved under the Fair Work Act, remove the FWC's arbitral authority where a factual dispute remains unresolved and the procedural steps in the enterprise agreement have been followed. The statutory character of enterprise agreements precludes the parties from contracting out of or compromising statutory rights and dispute resolution mechanisms conferred by the agreement and the Act.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The matter is remitted to the primary judge for consideration of the relief, if any, to which the first respondent (CFMMEU) is entitled on the cross-claim.']