All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union

All Trades Queensland Pty Limited sought judicial review of the Full Bench's decision to dismiss their appeal against a decision of the Fair Work Commission (FWC) that the Competency Based Training Award Transitional Instruments (CBTABTIs) had ceased to operate on 1 January 2014. The applicants sought approval of an enterprise agreement under the Fair Work Act 2009 (Cth). They argued that the agreement passed the "better off overall test" (BOOT) as required under s 193 of the Act, and that the relevant comparator instruments to be used were the CBTABTIs. The Full Bench had held that the relevant modern awards were the comparator instruments. The applicants argued that the Commissioner had erred in concluding that the relevant CBTABTIs terminated on 1 January 2014. The Full Bench dismissed the appeal, holding that the critical question was whether the relevant modern awards covered the employees to whom the 2015 agreement would apply if approved. The Full Bench held that the relevant modern award was the comparator instrument for the BOOT in respect of award covered employees and prospective award covered employees. The Full Bench found that the relevant modern awards covered the employees, regardless of whether the CBTABTIs covered or applied to such employees. The Full Bench held that the sunset provision of item 20 of Schedule 3 was not displaced in its operation by item 16 of Regulation 3B.02 of the Transitional Regulations. The Full Bench found that item 16 of Regulation 3B.02 expressly excluded the operation of item 29 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) if the criteria were met, but did not expressly exclude the operation of item 20 of Schedule 3. The Full Bench held that item 20 of Schedule 3 operated such that a National Award (NAPSA) terminated on the fourth anniversary of the safety net commencement date, or if regulations prescribed a later day, on that later day. The Full Bench held that the regulations did not prescribe a later day, and the NAPSAs terminated on 1 January 2014.

The Full Bench's decision to dismiss the appeal was upheld. The applicants' further amended originating application dated 6 June 2017 was dismissed.