Transit Systems West Services Pty Ltd v Australian Rail, Tram and Bus Industry Union [2020] FCAFC 193

Transit Systems West Services Pty Ltd v Australian Rail, Tram and Bus Industry Union [2020] FCAFC 193

The application failed because the applicant's construction of ss 739(5) and 768AI(3) had no textual support and was inconsistent with the purpose of Pt 6-3A, which was to preserve transferring employees' existing terms and conditions. The Full Bench did not commit jurisdictional error by using surrounding circumstances, including the 2013 agreement and related background facts, in an orthodox construction of cl 67.3 of the copied State award. In any event, the point had not been raised before the Commissioner or the Full Bench, a declaration of invalidity would be inutile, and certiorari was unavailable because the FWC was exercising private arbitral powers.

Jurisdiction
Australia
Judgment Date
13 November 2020
Procedural Posture
Application for Declarations and an Order in the Nature of Certiorari Concerning a Full Bench of the Fair Work Commission Decision / Federal Court Application Dismissed
Outcome
Application dismissed.
Legal Topics
['pt 6 3 a of the Fair Work Act 2009 (cth)' 'copied State Award' 'transfer of Business From a State Public Sector Employer' 'fair Work Commission Private Arbitration' 'construction of Award Terms' 'jurisdictional Error' 'certiorari' 'discretionary Relief']
['industrial Law' 'administrative Law'] ['pt 6 3 a of the Fair Work Act 2009 (cth)' 'copied State Award' 'transfer of Business From a State Public Sector Employer' 'fair Work Commission Private Arbitration' 'construction of Award Terms' 'jurisdictional Error' 'certiorari' 'discretionary Relief']

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Procedural Posture

Application for Declarations and an Order in the Nature of Certiorari Concerning a Full Bench of the Fair Work Commission Decision / Federal Court Application Dismissed

Legal Issues

  1. 1 ['Whether ss 739(5) and 768AI(3) of the Fair Work Act 2009 (Cth) precluded the Fair Work Commission, acting as a private arbitrator, from considering surrounding circumstances to resolve ambiguity in cl 67.3 of a copied State award.' 'Whether the Full Bench of the Fair Work Commission committed jurisdictional error by having regard to the 2013 agreement and related background facts in construing cl 67.3.' 'Whether certiorari or declarations should be granted in respect of the Full Bench decision.']

Ratio Decidendi

The application failed because the applicant's construction of ss 739(5) and 768AI(3) had no textual support and was inconsistent with the purpose of Pt 6-3A, which was to preserve transferring employees' existing terms and conditions. The Full Bench did not commit jurisdictional error by using surrounding circumstances, including the 2013 agreement and related background facts, in an orthodox construction of cl 67.3 of the copied State award. In any event, the point had not been raised before the Commissioner or the Full Bench, a declaration of invalidity would be inutile, and certiorari was unavailable because the FWC was exercising private arbitral powers.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']