One Tree Community Services Inc v United Voice [2019] FCA 1309

One Tree Community Services Inc v United Voice [2019] FCA 1309

The applicant (One Tree) has raised an arguable case that compelling arbitration by the Commission, in the absence of agreement to arbitrate, may involve an unconstitutional exercise of judicial power. The balance of convenience and interests of justice favour granting interlocutory relief to allow this threshold jurisdictional and constitutional issue to be determined before the arbitration proceeds. Accordingly, interim orders restraining the Commission from arbitrating the dispute were granted pending resolution of the issue.

Jurisdiction
Australia
Judgment Date
19 August 2019
Procedural Posture
Application for Interlocutory Relief / Interlocutory Judgment
Outcome
Interim orders granted restraining the Commission from proceeding with arbitration pending determination of the originating application or further order. Orders stayed for 48 hours to allow the Commission to consider adjourning its own procedures. Costs were reserved.
Legal Topics
['jurisdiction of Fair Work Commission' 'arbitration Consent Under Enterprise Agreements' 'exercise of Judicial Power Under Constitution Ch Iii' 'transfer of Industrial Instruments Under Fair Work Act' 'interlocutory Injunction Principles']
['industrial Law' 'constitutional Law' 'employment Law'] ['jurisdiction of Fair Work Commission' 'arbitration Consent Under Enterprise Agreements' 'exercise of Judicial Power Under Constitution Ch Iii' 'transfer of Industrial Instruments Under Fair Work Act' 'interlocutory Injunction Principles']

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Procedural Posture

Application for Interlocutory Relief / Interlocutory Judgment

Legal Issues

  1. 1 ['Whether the Fair Work Commission has jurisdiction to arbitrate the dispute between One Tree and United Voice about redundancy recognition for transferred employees under an enterprise agreement where One Tree did not consent or agree to arbitration; whether compelling arbitration without consent would involve an impermissible exercise of judicial power contrary to Chapter III of the Constitution; whether a prima facie case and the balance of convenience favours interlocutory relief']

Ratio Decidendi

The applicant (One Tree) has raised an arguable case that compelling arbitration by the Commission, in the absence of agreement to arbitrate, may involve an unconstitutional exercise of judicial power. The balance of convenience and interests of justice favour granting interlocutory relief to allow this threshold jurisdictional and constitutional issue to be determined before the arbitration proceeds. Accordingly, interim orders restraining the Commission from arbitrating the dispute were granted pending resolution of the issue.

Court Disposition

Interim orders granted restraining the Commission from proceeding with arbitration pending determination of the originating application or further order. Orders stayed for 48 hours to allow the Commission to consider adjourning its own procedures. Costs were reserved.

Orders

  • ['Until hearing and determination of the originating application or further order, the Fair Work Commission (Second Respondent) restrained from arbitrating the dispute in FWC proceeding C2019/1489.' "Orders stayed 48 hours and thereafter discharged if the Commission adjourns the dispute and stays interlocutory...