One Tree Community Services Inc v United Voice (No 2) [2020] FCA 390

One Tree Community Services Inc v United Voice (No 2) [2020] FCA 390

By operation of s 313 of the Fair Work Act, statutory mechanisms deem consent by a new employer—including One Tree—to enterprise agreement terms such as arbitration clauses. This deemed consent is sufficient to support the Commission’s exercise of arbitral power; no impermissible judicial power arises. Any constructional or statutory inconsistency arguments regarding enterprise agreement terms should be determined by the Commission, not the Court.

Jurisdiction
Australia
Judgment Date
25 March 2020
Procedural Posture
Originating Application for Injunctions and Declarations / Final Judgment
Outcome
Application dismissed
Legal Topics
['judicial Power of the Commonwealth' 'dispute Resolution Clauses' 'enterprise Agreements' 'transfer of Business' 'redundancy Entitlements' 'consent Under Fair Work Act']
['constitutional Law' 'industrial Law' 'employment & Industrial Relations'] ['judicial Power of the Commonwealth' 'dispute Resolution Clauses' 'enterprise Agreements' 'transfer of Business' 'redundancy Entitlements' 'consent Under Fair Work Act']

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Procedural Posture

Originating Application for Injunctions and Declarations / Final Judgment

Legal Issues

  1. 1 ['Whether consent is required for Fair Work Commission arbitral power under a dispute resolution clause in a transferred enterprise agreement' 'Whether the new employer is deemed to have consented to arbitration under statutory transfer provisions' 'Whether dispute resolution clauses in the enterprise agreement are enforceable against the new employer' 'Whether enterprise agreement clauses are inconsistent with statutory rights under the Fair Work Act']

Ratio Decidendi

By operation of s 313 of the Fair Work Act, statutory mechanisms deem consent by a new employer—including One Tree—to enterprise agreement terms such as arbitration clauses. This deemed consent is sufficient to support the Commission’s exercise of arbitral power; no impermissible judicial power arises. Any constructional or statutory inconsistency arguments regarding enterprise agreement terms should be determined by the Commission, not the Court.

Court Disposition

Application dismissed

Orders

  • ['The application be dismissed.' 'Absent consent, the first respondent is to provide a minute of further proposed orders, if any, and any submissions (not exceeding 3 pages) within 10 days.' 'The applicant is to provide in response a minute of proposed orders and any submissions (not exceeding 3 pages) within 10...