Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCAFC 231

Federal Court of Australia

Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCAFC 231 Appeal from: Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694

File number: WAD 302 of 2020

Judgment of: WHITE, BANKS-SMITH AND JACKSON JJ

Date of judgment: 17 December 2021

Catchwords: INDUSTRIAL LAW - primary judge dismissed application for declarations that Fair Work Commission (FWC) lacked jurisdiction to make arbitral award - dispute over manning levels on vessels - meaning of 'dispute' in s 739(4) of Fair Work Act 2009 (Cth) - construction of enterprise agreement - separate settlement agreement between union and company - terms of enterprise agreement included dispute resolution procedure providing for arbitration by FWC if matter unresolved after certain steps complied with - whether matter resolved by separate agreement - accord and satisfaction - enforceability of separate agreement - intention to create contractual relations - separate agreement incapable of modifying enterprise agreement or circumventing arbitral jurisdiction of FWC to resolve arbitral dispute - dispute in fact unresolved throughout dispute resolution procedure - appeal dismissed - remitted to primary judge for consideration of appropriate relief, if any

Legislation: Constitution Chapter III Fair Work Act 2009 (Cth) ss 19, 50, 172, 186, 201, 562, 587, 595, 738, 739, 740 Judiciary Act 1903 (Cth) s 39B Fair Work Regulations 2009 (Cth) Schedule 6.1 Workers' Compensation Act 1902 (WA)