John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 372

FEDERAL COURT OF AUSTRALIA

Citation:	John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 372

Parties:	JOHN HOLLAND PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and FAIR WORK COMMISSION

File number(s):	WAD 411 of 2012

Judge(s):	SIOPIS J

Date of judgment:	10 April 2014

Date of hearing:	Determined on the papers.

Date of last submissions:	3 April 2014

Place:	Perth

Division:	FAIR WORK DIVISION

Category:	No Catchwords

Number of paragraphs:	6

Counsel for the Applicant:	Mr Stuart Wood SC and Mr Richard Dalton

Solicitor for the Applicant:	Kelly Hazell Quill Lawyers

Counsel for the First Respondent:	Mr Robert Reitano

Solicitor for the First Respondent:	Construction, Forestry, Mining and Energy Union

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 411 of 2012

BETWEEN:

JOHN HOLLAND PTY LTD

Applicant

AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent FAIR WORK COMMISSION Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	10 APRIL 2014
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The Fair Work Commission hear and determine the appeal by the first respondent in C No 4132 of 2012 according to law.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 411 of 2012

BETWEEN:

JOHN HOLLAND PTY LTD

Applicant

AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent FAIR WORK COMMISSION Second Respondent

JUDGE:	SIOPIS J
DATE:	10 APRIL 2014
PLACE:	PERTH

REASONS FOR JUDGMENT

1 On 27 March 2014, I made orders that a writ in the nature of certiorari issue to quash the decision of the Full Bench of the Fair Work Commission (the Commission) dated 13 September 2012.

2 The applicant, John Holland Pty Ltd (John Holland), had also sought relief in the nature of a writ of mandamus directed towards the Full Bench of the Commission.

3 Before making an order in the nature of mandamus, I asked the parties for submissions as to whether relief of that nature should be made.

4 Both parties have now filed submissions. Each party contends that relief in the nature of mandamus should be ordered. The parties are agreed that in the absence of the making of such an order, the appeal to the Full Bench of the Commission will remain undecided. Each party has drawn the Court’s attention to the fact that there were five grounds of appeal before the Full Bench. The first four grounds of appeal related to the question of the proper construction of s 186(3) of the Fair Work Act 2009 (Cth) in the context of the question of whether the group of employees covered by the agreement was fairly chosen. The fifth ground of appeal, however, relates to the question of whether the deputy president of the Commission had erred in being satisfied that the agreement satisfied the better off overall test.

5 By reason of the view to which it came in relation to the “fairly chosen” question, the Full Bench did not find it necessary to deal with the fifth ground of appeal.

6 John Holland contended that the Court should frame the order in the nature of mandamus so as to direct the Commission to dismiss the first four grounds of appeal and determine the fifth ground of appeal, if pursued by the first respondent, according to law. However, whilst it is to be expected that as a consequence of this Court’s decision, the Commission will dismiss the first four grounds of the appeal, in my view, the appropriate order, particularly in the circumstances where there is a further ground of appeal undecided, is to make the order in the nature of mandamus in the traditional terms.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 10 April 2014

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