National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98

National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98

The Fair Work Commission misapprehended its statutory function by adopting the wrong test as to which employees were entitled to vote for approval of the enterprise agreement. It did not ascertain how many voting employees were 'employed at the time'. Consequently, the Commission could not be satisfied that a majority of eligible employees approved the agreement. This constituted a jurisdictional error warranting grant of mandamus and certiorari.

Parties
Applicant: National Tertiary Education Industry Union; First Respondent: Swinburne University of Technology; Second Respondent: Fair Work Commission
Jurisdiction
Australia
Judgment Date
17 July 2015
Procedural Posture
Judicial Review / Federal Court Appeal From Fair Work Commission Approval of Enterprise Agreement
Outcome
Application granted: writs of certiorari and mandamus issued; approval of agreement by the Fair Work Commission quashed.
Legal Topics
Enterprise Agreements, Approval of Enterprise Agreements, Casual and Sessional Employees, Voting Requirements for Approval, Jurisdictional Error, Mandamus and Certiorari
Industrial Law Employment Law Enterprise Agreements Approval of Enterprise Agreements Casual and Sessional Employees Voting Requirements for Approval Jurisdictional Error Mandamus and Certiorari

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Parties

National Tertiary Education Industry Union

Applicant

Swinburne University of Technology

First Respondent

Fair Work Commission

Second Respondent

Procedural Posture

Judicial Review / Federal Court Appeal From Fair Work Commission Approval of Enterprise Agreement

Legal Issues

  1. 1 Whether the Fair Work Commission applied the correct test for identifying employees eligible to vote for approval of an enterprise agreement
  2. 2 Whether a majority of employees 'employed at the time' cast a valid vote to approve the agreement under Fair Work Act 2009 (Cth) ss 180, 181, 182
  3. 3 Whether the Commission misapprehended its statutory task and committed jurisdictional error

Ratio Decidendi

The Fair Work Commission misapprehended its statutory function by adopting the wrong test as to which employees were entitled to vote for approval of the enterprise agreement. It did not ascertain how many voting employees were 'employed at the time'. Consequently, the Commission could not be satisfied that a majority of eligible employees approved the agreement. This constituted a jurisdictional error warranting grant of mandamus and certiorari.

Court Disposition

Application granted: writs of certiorari and mandamus issued; approval of agreement by the Fair Work Commission quashed.

Orders

  • A writ of certiorari quashing Fair Work Commission approval of the Swinburne University of Technology Academic and General Staff Enterprise Agreement 2014.
  • A writ of mandamus requiring the Commission to determine the University's application for approval according to law.