Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
One Tree Community Services Inc v United Voice (No 2) [2020] FCA 390 File number: WAD 389 of 2019
Judge: MCKERRACHER J
Date of judgment: 25 March 2020
Catchwords: CONSTITUTIONAL LAW – Judicial power of the Commonwealth – exercise of arbitral power by Fair Work Commission under dispute resolution clause in enterprise agreement – consent needed for valid exercise of arbitral power - where enterprise agreement applies to new employer by operation of s 313 Fair Work Act 2009 (Cth) – whether new employer deemed to have consented to the dispute resolution clause – in circumstances where lack of consent would amount to an impermissible exercise of judicial power by the Fair Work Commission INDUSTRIAL LAW – transfer of business under Part 2-8 of Fair Work Act 2009 (Cth) – whether new employer is bound by dispute resolution clause – where new employment contract included term which excluded operation of enterprise agreement – where no order sought under s 318 or s 320 to set aside or vary enterprise agreement
Legislation: Constitution s 71 Corporations Act 2001 (Cth) s 50AAA Fair Work Act 2009 (Cth) ss 14, 22(5), 22(7), 22(8), 55, 122(1), 172, 172(1), 172(1)(a), 182, 182(1), 186, 311, 311(1), 312, 313, 313(1)(a), 314, 315, 316, 317, 318, 320, 562, 595, 738, 739, 739(4) Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)(b), 39B(1A)(c), 78B
Cases cited: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Construction, Forestry, Mining and Energy Union v Australian Industrial Relation Commission (2001) 203 CLR 645 Construction, Forestry, Mining and Energy Union v Newlands Coal Pty Ltd (2006) 153 IR 110 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 One Tree Community Service Inc v United Voice [2019] FCA 1309 Smith v Hughes (1871) LR 6 QB 597 Taylor v Johnson (1983) 151 CLR 422 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of Federal Court of Australia (2013) 251 CLR 533 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152
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