Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 File number: NSD 2058 of 2016

Judge: FLICK J

Date of judgment: 8 November 2017

Catchwords: INDUSTRIAL LAW – enterprise agreements – review of approval of enterprise agreement by Fair Work Commission – where agreement voted on by the three employees employed at the time agreement was made –where agreement covers employees under 11 modern awards – pre-approval steps – whether Commission failed to take all reasonable steps to explain the agreement – whether agreement genuinely agreed to by the employees covered by the agreement – jurisdictional error – no agreement susceptible of approval under s 186 of the Fair Work Act 2009 (Cth) PRACTICE AND PROCEDURE – delay – where Originating Application filed over twelve months after decision of the Commission – where adequate explanation provided for the delay – where discretion not exercised to refuse relief on the basis of delay

Legislation: Fair Work Act 2009 (Cth) ss 3, 53, 171, 172, 173, 174, 176, 180, 185, 186, 187, 188, 193, 417 Federal Court of Australia Act 1976 (Cth) s 16 Workplace Relations Act 1996 (Cth) ss 170LT, 170XA, 327 Fair Work Regulations 2009 (Cth) reg 2.06A

Cases cited: Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337, (2008) 251 ALR 633 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123, (2015) 235 FCR 305 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 Commissioner of Taxation v Pham [2013] FCA 579, (2013) 134 ALD 534 Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18, (2007) 157 FCR 329 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [1999] FCA 847, (1999) 93 FCR 317 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16, (2015) 228 FCR 297 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2011] FCAFC 91, (2011) 194 FCR 269 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87, (2012) 203 FCR 371 Cook v Australian Postal Corporation [2017] FCA 509 John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCA 286, (2014) 241 IR 439 Maritime Union of Australia v MMA Offshore Logistics Pty Ltd [2017] FWCFB 660, (2017) 263 IR 81 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36, (2012) 246 CLR 379 Re KCL Industries Pty Ltd [2016] FWCFB 3048, (2016) 257 IR 266 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, (2003) 198 ALR 59 Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2, (2016) 259 IR 164 Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35, (2015) 229 FCR 537 Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84, (2014) 222 FCR 152 United Firefighters Union of Australia v Country Fire Authority [2014] FCA 17, (2014) 218 FCR 210 United Voice v MSS Security Pty Ltd [2016] FCAFC 124, (2016) 153 ALD 200