One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77

One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77

The Full Court held that compliance with s 180(5) is not a jurisdictional fact itself, but that the Fair Work Commission’s satisfaction as to that compliance is a jurisdictional precondition, and was here vitiated by jurisdictional error. The Commission failed to inform itself about the actual content and terms of the explanation provided to employees and did not properly assess whether there was genuine agreement given the Agreement's broad scope and the backgrounds of the employees who voted. As a result, the basis for approval was absent and the appeal was dismissed.

Parties
Appellant: One Key Workforce Pty Ltd; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Fair Work Commission
Jurisdiction
Australia
Judgment Date
25 May 2018
Procedural Posture
Appeal / Full Court Appeal After First Instance Decision
Outcome
appeal dismissed
Legal Topics
Enterprise Agreements, Jurisdictional Error, Approval Process by Fair Work Commission, Better Off Overall Test (boot), Genuine Agreement Requirement, Pre Approval Obligations Under Fair Work Act, Judicial Review
Employment Law Industrial Law Enterprise Agreements Jurisdictional Error Approval Process by Fair Work Commission Better Off Overall Test (boot) Genuine Agreement Requirement Pre Approval Obligations Under Fair Work Act +1 more

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Parties

One Key Workforce Pty Ltd

Appellant

Construction, Forestry, Mining and Energy Union

First Respondent

Fair Work Commission

Second Respondent

Procedural Posture

Appeal / Full Court Appeal After First Instance Decision

Legal Issues

  1. 1 Whether compliance with s 180(5) of the Fair Work Act 2009 (Cth) is a jurisdictional fact or a matter for Fair Work Commission's satisfaction
  2. 2 Whether Fair Work Commission failed to properly consider pre-approval obligations, including whether reasonable steps were taken to explain the terms and effect of the agreement to employees
  3. 3 Whether the Commission’s satisfaction that the agreement had been genuinely agreed to was affected by jurisdictional error, particularly due to the wide occupational scope and small number of employees

Ratio Decidendi

The Full Court held that compliance with s 180(5) is not a jurisdictional fact itself, but that the Fair Work Commission’s satisfaction as to that compliance is a jurisdictional precondition, and was here vitiated by jurisdictional error. The Commission failed to inform itself about the actual content and terms of the explanation provided to employees and did not properly assess whether there was genuine agreement given the Agreement's broad scope and the backgrounds of the employees who voted. As a result, the basis for approval was absent and the appeal was dismissed.

Court Disposition

appeal dismissed

Orders

  • Within 28 days the parties file submissions (not exceeding five pages) on the question of what orders should be made in light of these reasons.
  • Unless otherwise ordered, the question be determined on the papers.