Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138 File number: VID 337 of 2017

Judge: BROMBERG J

Date of judgment: 7 August 2020

Catchwords: INDUSTRIAL LAW – separate questions pursuant to r 30.01 of the Federal Court Rules 2011 – s 417 of the Fair Work Act 2009 (Cth) – whether ship's crew were "covered by" enterprise agreement at relevant time and were consequently disentitled to take lawful industrial action – construction of "application" clause of enterprise agreement – meaning of "operate in the trade" – whether "trade" referred to trade of employer of the crew or trade of the vessel upon which crew were employed – whether fact that enterprise agreement describes the job performed by the employee was sufficient of itself for the agreement to cover the employee.

Legislation: Fair Work Act 2009 (Cth) Federal Court Rules 2011 (Cth)

Cases cited: ALDI Foods Pty Limited v Shop, Distributive and Allied Employees Association (2017) 262 CLR 593 Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Qantas Airways Limited [2001] FCA 547 Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 Kucks v CSR Ltd (1996) 66 IR 182 National Tertiary Education Union v La Trobe University [2014] FCA 1330 National Tertiary Education Union v La Trobe University (2015) 254 IR 238 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 WorkPac v Rossato [2020] FCAFC 84 WorkPac Pty Ltd v Skene (2018) 264 FCR 536