Mid West Port Authority v Construction, Forestry, Maritime, Mining, and Energy Union [2022] FCAFC 53

Mid West Port Authority v Construction, Forestry, Maritime, Mining, and Energy Union [2022] FCAFC 53

The appeal failed because the Fair Work Act 2009 (Cth) does not make objectively ascertained compliance with pre-approval steps, including the making of an agreement under s 182(1), a jurisdictional fact conditioning the Fair Work Commission's power to approve an enterprise agreement. The occurrence of the vote and the making of an application trigger the Commission's approval function, and the Act entrusts to the Commission the evaluative task of deciding whether it is satisfied that the agreement was genuinely agreed and that the statutory requirements are met. Once approved, and after the statutory period, the enterprise agreement operates; its enforceability does not depend on a later...

Jurisdiction
Australia
Judgment Date
05 April 2022
Procedural Posture
Industrial Law Appeal From a Decision of the Western Australian Industrial Magistrates Court Under S 565 of the Fair Work Act 2009 (cth) / Appeal to the Full Court of the Federal Court of Australia From Determination of Preliminary Questions
Outcome
Appeal dismissed.
Legal Topics
['enterprise Agreements' 'fair Work Commission Approval of Enterprise Agreements' 'pre Approval Requirements' 'jurisdictional Fact' 'collateral Challenge' 'genuine Agreement Under the Fair Work Act 2009 (cth)']
['industrial Law' 'employment and Industrial Relations' 'administrative Law'] ['enterprise Agreements' 'fair Work Commission Approval of Enterprise Agreements' 'pre Approval Requirements' 'jurisdictional Fact' 'collateral Challenge' 'genuine Agreement Under the Fair Work Act 2009 (cth)']

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Procedural Posture

Industrial Law Appeal From a Decision of the Western Australian Industrial Magistrates Court Under S 565 of the Fair Work Act 2009 (cth) / Appeal to the Full Court of the Federal Court of Australia From Determination of Preliminary Questions

Legal Issues

  1. 1 ["Whether the existence of an enterprise agreement 'made' in accordance with s 182(1) of the Fair Work Act 2009 (Cth) is a jurisdictional fact necessary to enliven the Fair Work Commission's power to approve the agreement." 'Whether the Western Australian Industrial Magistrates Court erred in concluding that the 2017 enterprise agreement, although not validly made in the sense found by the magistrate, was validly approved by the Fair Work Commission and continued to apply until nominal expiry or until set aside, quashed or terminated.' 'Whether the approval of the 2017 enterprise agreement was beyond the jurisdiction of the Fair Work Commission because approximately 40% of employees proposed to be covered were not given an opportunity to vote.' 'Whether the proceedings before the industrial magistrate could involve collateral review of the validity of the approved enterprise agreement.']

Ratio Decidendi

The appeal failed because the Fair Work Act 2009 (Cth) does not make objectively ascertained compliance with pre-approval steps, including the making of an agreement under s 182(1), a jurisdictional fact conditioning the Fair Work Commission's power to approve an enterprise agreement. The occurrence of the vote and the making of an application trigger the Commission's approval function, and the Act entrusts to the Commission the evaluative task of deciding whether it is satisfied that the agreement was genuinely agreed and that the statutory requirements are met. Once approved, and after the statutory period, the enterprise agreement operates; its enforceability does not depend on a later...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'There be liberty to apply on or before 12 April 2022 for any orders as to costs, such liberty to be exercised by filing a minute of the orders sought as to costs together with any necessary affidavit and submissions of no more than three pages.' 'Unless otherwise ordered, any application...