Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74

FEDERAL COURT OF AUSTRALIA

Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 File number(s): VID 57 of 2018

Judge(s): JAGOT, BROMBERG AND RANGIAH JJ

Date of judgment: 15 May 2018

Catchwords: INDUSTRIAL LAW – ss 186(3) and 186(3A) of the Fair Work Act 2009 (Cth) ("FW Act") – judicial review of decision by Fair Work Commission ("Commissioner") and appeal decision of the Full Bench of the Fair Work Commission ("Full Bench") – disapproval of an enterprise agreement – non-satisfaction that employees were "fairly chosen". ADMINISTRATIVE LAW – jurisdictional error – whether the Commissioner misconstrued s 186(3A) of the FW Act – whether the Commissioner was bound to find that workers under agreement were "organisationally distinct" because the agreement excluded casual employees, even though their work was of the same nature – whether Commissioner failed to regard relevant considerations and material and regarded irrelevant considerations in deciding whether the group of employees was "fairly chosen" – purpose of s 186(3) – no evidence or no available inference ground of review – no jurisdictional error – unnecessary to consider the reasons given by the Full Bench – Commissioner's decision founded on two independent bases – no basis to quash the decision where only one basis challenged – appeal dismissed.

Legislation: Fair Work Act 2009 (Cth) ss 171, 186

Cases cited: Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 270 IR 459 Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia v Abigroup Contractors Pty Ltd [2013] FCAFC 148 Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd [2017] FCAFC 179; (2017) 270 IR 354 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Transport Workers' Union of Australia v Mayne Nickless Ltd [1998] FCA 1022