One Tree Community Services Inc v United Workers' Union [2021] FCAFC 15

One Tree Community Services Inc v United Workers' Union [2021] FCAFC 15

By majority (Bromberg and Kerr JJ), the Court held that the Fair Work Commission would not exercise the judicial power of the Commonwealth in arbitrating a dispute under cl 77 of the Mission Australia Early Learning Services Enterprise Agreement. The Appellant had voluntarily assumed the binding force of the Enterprise Agreement, including the arbitral clause, through its conduct in taking over the relevant business and workforce, thereby supplying the requisite consensual foundation. On that basis, the necessary element of consent was satisfied, and the FWC's power was not sourced in the sovereign authority, but in voluntary submission; thus, the appeal was dismissed. Flick J dissented,...

Parties
Appellant: One Tree Community Services Inc; First Respondent: United Workers' Union; Second Respondent: Fair Work Commission
Jurisdiction
Australia
Judgment Date
24 February 2021
Procedural Posture
Appeal / Full Court Judgment Following an Appeal From Federal Court Decision
Outcome
Appeal dismissed by majority (Bromberg and Kerr JJ); Flick J would have allowed the appeal.
Legal Topics
Judicial Power of the Commonwealth, Dispute Resolution Clause in Enterprise Agreement, Binding Arbitration Under the Fair Work Act, Transfer of Business Provisions, Arbitral Authority V Judicial Power
Constitutional Law Industrial Law Employment Law Judicial Power of the Commonwealth Dispute Resolution Clause in Enterprise Agreement Binding Arbitration Under the Fair Work Act Transfer of Business Provisions Arbitral Authority V Judicial Power

Case Brief

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Parties

One Tree Community Services Inc

Appellant

United Workers' Union

First Respondent

Fair Work Commission

Second Respondent

Procedural Posture

Appeal / Full Court Judgment Following an Appeal From Federal Court Decision

Legal Issues

  1. 1 Whether Fair Work Commission exercises judicial power in arbitrating disputes under an enterprise agreement under s 739 of the Fair Work Act
  2. 2 Whether the necessary consent/agreement existed for private arbitration power to be exercised by the Fair Work Commission in respect of the Appellant (acquired business)
  3. 3 Whether the statutory application of an enterprise agreement by operation of the transfer of business provisions amounts to 'agreement' sufficient to authorise binding arbitration

Ratio Decidendi

By majority (Bromberg and Kerr JJ), the Court held that the Fair Work Commission would not exercise the judicial power of the Commonwealth in arbitrating a dispute under cl 77 of the Mission Australia Early Learning Services Enterprise Agreement. The Appellant had voluntarily assumed the binding force of the Enterprise Agreement, including the arbitral clause, through its conduct in taking over the relevant business and workforce, thereby supplying the requisite consensual foundation. On that basis, the necessary element of consent was satisfied, and the FWC's power was not sourced in the sovereign authority, but in voluntary submission; thus, the appeal was dismissed. Flick J dissented,...

Court Disposition

Appeal dismissed by majority (Bromberg and Kerr JJ); Flick J would have allowed the appeal.

Orders

  • The appeal be dismissed.
  • There be no order as to costs.