D&D Traffic Management Pty Ltd v The Australian Workers' Union [2022] FCAFC 113

Federal Court of Australia

D&D Traffic Management Pty Ltd v The Australian Workers' Union [2022] FCAFC 113 Review of: D&D Traffic Management Pty Ltd [2021] FWC 1017 D&D Traffic Management Pty Ltd [2021] FWC 1287

File number: NSD 1008 of 2021

Judgment of: KATZMANN, THAWLEY AND GOODMAN JJ

Date of judgment: 8 July 2022

Catchwords: ADMINISTRATIVE LAW – application for judicial review of decision of Fair Work Commission not to approve an enterprise agreement because Commission was not satisfied that it passed the "better off overall test" – whether Commission misconceived its statutory task or failed to carry it out because it misconstrued provisions of award against which enterprise agreement was to be compared – if so, whether jurisdictional error established – scope of review for jurisdictional error of decisions of Commission – where Full Bench had refused permission to appeal and decision of Full Bench not challenged, alleged errors not raised before Full Bench and in one central respect applicant's case was inconsistent with way in which matter argued in Commission, whether application would have been refused in exercise of Court's discretion – where Full Bench made no orders, whether open to applicant to challenge its decision INDUSTRIAL LAW – whether cl 33.1 of Building and Construction General On-Site Award 2010 does not apply to casual employees – whether Commission erred in its construction of the definition of "shiftwork" in cl 34.2(a) of Award

Legislation: Federal Court of Australia Act 1976 (Cth) ss 21, 22 Fair Work Act 2009 (Cth) ss 186(2)(d), 193(1), 562, 563 Judiciary Act 1903 (Cth) s 39B Building and Construction General On-Site Award 2010 cll 33.1, 34.2