Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694

Federal Court of Australia

Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 File number: WAD 608 of 2019

Judgment of: COLVIN J

Date of judgment: 25 November 2020

Catchwords: INDUSTRIAL LAW - application for declarations that Fair Work Commission lacked jurisdiction to make arbitral award - where dispute as to whether additional steward required on vessels - where FWC determined enterprise agreement required additional steward - where terms of enterprise agreement included dispute resolution procedure providing for arbitration by FWC if matter unresolved after steps complied with - whether failure to comply with step one of dispute resolution procedure - whether factual findings by FWC as to compliance with step one gave rise to issue estoppel - whether dispute resolved by earlier agreement between parties as to manning levels on vessels - where earlier agreement did not amend enterprise agreement - consideration of arbitral jurisdiction of FWC - application dismissed INDUSTRIAL LAW - cross-claim by union alleging failure to give effect to arbitral award was contravention of Fair Work Act 2009 (Cth) - application allowed

Legislation: Fair Work Act 2009 (Cth) ss 186, 207, 595, 739, Part 2.4, Division 4

Cases cited: Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering (Australia) Pty Ltd [2005] FCA 799 Construction, Forestry, Maritime, Mining and Energy Union v Maersk Crewing Australia Pty Ltd [2019] FWC 1745 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112; (2017) 251 FCR 1 Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; (2018) 264 FCR 342 Faghirzadeh v Rudolf Wolff (SA) Pty Ltd [1977] 1 Lloyd's Rep 630 Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442 Hanlon v Refined Sugar Services Pty Ltd [2002] FCA 1395 Kucks v CSR Ltd (1996) 66 IR 182 Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 Linfox Australia Pty Ltd v Transport Workers Union of Australia [2013] FCA 659; (2013) 213 FCR 234 Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 Newlands v Argyll General Insurance Co Ltd (1959) 59 SR (NSW) 130 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 Ramsay v Menso [2018] FCAFC 55; (2018) 260 FCR 506 Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart [2019] HCA 13 Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889 Ryan (Receiver & Manager of Homfray Carpets Australia Pty Ltd) v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235 Simplot Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union [2020] FWCFB 5054 TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533 The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 Trollope & Colls Limited v Atomic Power Constructions Limited [1962] 3 All ER 1035; [1963] 1 WLR 333 WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 563