United Voice v MSS Security Pty Ltd [2016] FCAFC 124

United Voice v MSS Security Pty Ltd [2016] FCAFC 124

The Full Bench of the Fair Work Commission made jurisdictional error because it failed to deal with the union's argument that cl 4.3.5(a) of the enterprise agreement reduced remuneration for some employees compared with the award, and therefore failed to undertake the comparison required by ss 186(2)(d) and 193(1) of the Fair Work Act 2009 (Cth). The Federal Court, exercising supervisory jurisdiction, would not decide the construction and merits issues itself, because those matters were for the Commission, including any evaluation under s 189(2). Certiorari and mandamus were therefore appropriate.

Jurisdiction
Australia
Judgment Date
23 August 2016
Procedural Posture
Application for Constitutional Writ Relief Under S 39 B(1) of the Judiciary Act 1903 (cth) and Ss 562 and 563 of the Fair Work Act 2009 (cth) / Federal Court Full Court Determination of Application Concerning Fair Work Commission Decisions
Outcome
Application allowed in part; writs of certiorari and mandamus issued.
Legal Topics
['fair Work Act 2009 (cth)' 'enterprise Agreement Approval' 'better Off Overall Test' 'jurisdictional Error' 'constitutional Writs' 'certiorari' 'mandamus']
['industrial Law' 'employment and Industrial Relations' 'administrative Law'] ['fair Work Act 2009 (cth)' 'enterprise Agreement Approval' 'better Off Overall Test' 'jurisdictional Error' 'constitutional Writs' 'certiorari' 'mandamus']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Constitutional Writ Relief Under S 39 B(1) of the Judiciary Act 1903 (cth) and Ss 562 and 563 of the Fair Work Act 2009 (cth) / Federal Court Full Court Determination of Application Concerning Fair Work Commission Decisions

Legal Issues

  1. 1 ["Whether the Full Bench of the Fair Work Commission made jurisdictional error by failing to consider the union's appeal ground that the enterprise agreement did not satisfy the better off overall test." 'Whether the Federal Court should construe the enterprise agreement and decide whether the agreement was capable of satisfying the better off overall test on an application for constitutional writ relief.' 'Whether writs of certiorari and mandamus should issue in respect of the Fair Work Commission decisions.']

Ratio Decidendi

The Full Bench of the Fair Work Commission made jurisdictional error because it failed to deal with the union's argument that cl 4.3.5(a) of the enterprise agreement reduced remuneration for some employees compared with the award, and therefore failed to undertake the comparison required by ss 186(2)(d) and 193(1) of the Fair Work Act 2009 (Cth). The Federal Court, exercising supervisory jurisdiction, would not decide the construction and merits issues itself, because those matters were for the Commission, including any evaluation under s 189(2). Certiorari and mandamus were therefore appropriate.

Court Disposition

Application allowed in part; writs of certiorari and mandamus issued.

Orders

  • ['A writ of certiorari issue to the Fair Work Commission removing into this Court the decision made in Sydney on 12 November 2015 in proceeding C2015/3752, recorded in United Voice - Queensland Branch v MSS Security Pty Ltd [2015] FWCFB 6923, and quashing that decision.' 'A writ of certiorari issue to the Fair Work...