Australian Industry Group v Fair Work Australia [2012] FCAFC 108

FEDERAL COURT OF AUSTRALIA

Australian Industry Group v Fair Work Australia [2012] FCAFC 108 Citation: Australian Industry Group v Fair Work Australia [2012] FCAFC 108

Parties: AUSTRALIAN INDUSTRY GROUP v FAIR WORK AUSTRALIA, ADJ CONTRACTING PTY LTD (ACN 006 778 507), COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, NATIONAL ELECTRICAL AND COMMUNICATIONS ASSOCIATION, AUSTRALIAN COUNCIL OF TRADE UNIONS, AUSTRALIAN MINES AND METALS ASSOCIATION INC and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File number: VID 1388 of 2011

Judges: NORTH, MCKERRACHER AND REEVES JJ

Date of judgment: 14 August 2012

Catchwords: INDUSTRIAL LAW – judicial review of decision of Fair Work Australia to approve enterprise agreement – whether there was jurisdictional error in the Full Bench decision – whether the agreement contained unlawful terms – circumstances in which error of law might amount to jurisdictional error – regard to the statute to determine legislative intention as to jurisdictional error – whether clause in agreement had effect of requiring employer to contravene 'general protection' provisions in the Fair Work Act 2009 (Cth) – whether compliance with a clause of the agreement would result in the employer or union being liable for pecuniary penalties under the Competition and Consumer Act 2010 (Cth) and the Building and Construction Industry Improvement Act 2005 (Cth) – whether clause of the agreement was unlawful because it permitted right of entry by union officials other than in accordance with Pt 3-4 of the Fair Work Act 2009 (Cth) – whether subclauses of the agreement were unlawful because compliance by employer would contravene s 350 of the Fair Work Act 2009 (Cth), prohibiting employers from inducing employees to take membership action