Construction, Forestry, Mining & Energy Union v Deputy President Hamberger [2011] FCA 719

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining & Energy Union v Deputy President Hamberger [2011] FCA 719 Citation: Construction, Forestry, Mining & Energy Union v Deputy President Hamberger [2011] FCA 719

Parties: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v DEPUTY PRESIDENT HAMBERGER, DEPUTY PRESIDENT MCCARTHY, COMMISSIONER BLAIR OF FAIR WORK AUSTRALIA and NEWLANDS COAL PTY LIMITED

File number(s): NSD 1676 of 2010

Judge: KATZMANN J

Date of judgment: 24 June 2011

Catchwords: INDUSTRIAL LAW – Enterprise agreement – coverage clause – whether Fair Work Australia may approve an enterprise agreement which permits employees to elect not to be covered by it – whether the Full Bench erred in holding that the right to choose means that employees are better off overall than if they were covered by the modern award – whether the Full Bench failed to consider whether the group of employees who will be covered by the award were geographically, operationally or organisationally distinct pursuant to s 186(3A), Fair Work Act 2009 (Cth) ADMINISTRATIVE LAW – Applications for writs of certiorari and mandamus – whether, if the Full Bench erred, errors were jurisdictional errors STATUTORY INTERPRETATION – Meaning of "[employees] who will be covered by the agreement" in Part 2-4, Fair Work Act 2009 (Cth)

Legislation: Fair Work Act 2009 (Cth) ss 53, s 171, 172, 180, 181, 182, 185, 186, 187, 193, s 256A, 562, 563, 570 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Judiciary Act 1903 (Cth) s 39B Workplace Relations Act 1996 (Cth)

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 Concut Pty Ltd v Worrell (2000) 103 IR 160 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Another (2007) 157 FCR 260 Craig v State of South Australia (1995) 184 CLR 163 Deva v University of Western Sydney [2011] FCA 199 Elias v Commissioner of Taxation (2002) 123 FCR 499 Kirk v Industrial Relations Commission of New South Wales & Anor (2010) 239 CLR 531 Re McJannet; ex parte The Australian Workers' Union of Employees, Queensland [No 2] (1997) 189 CLR 654 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Nestle Australia Ltd v Commissioner of Taxation (Cth) (1987) 16 FCR 167 Newlands Coal v CFMEU [2010] FWAFB 7401 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Zhang v Canterbury City Council (2001) 51 NSWLR 589