AMACSU v Ergon Energy Corporation Ltd

The case of AMACSU v Ergon Energy Corporation Ltd involves an industrial dispute in Queensland, where an agreement was made between an employer and employee organisations. The Australian Manufacturing Workers' Union (AMACSU) did not sign the agreement but had a right to be heard as a relevant employee organisation. The signatories to the agreement brought an application to the Vice President of the Queensland Industrial Relations Commission (QIRC) for certification of the agreement. AMACSU applied for certain directions at the certification hearing, which were opposed by the respondents on the basis that AMACSU was not a party to the agreement. The application was referred to the QIRC full bench for directions, which concluded that AMACSU had been heard and should not be further heard. The certification hearing was remitted back to the QIRC Vice President, and AMACSU signed the agreement before the certification hearing resumed. The agreement was certified on 30 May 2005 and is currently in operation. AMACSU appealed the certification decision to the full bench of the QIRC and also appealed the interlocutory decision of the full bench to the Court of Appeal. The appeal was based on the full bench denying AMACSU its entitlement to be heard. The respondents applied to have the appeal struck out or permanently stayed, arguing that it would be futile to grant the orders sought in the appeal.

The appeal to the Court of Appeal sought the suspension of both the full bench decision and the subsequent decision to certify the agreement, as well as to have the matter remitted to the QIRC for rehearing according to law. The appellant intended to seek leave to amend its grounds of appeal to seek a declaration that the certification decision was a nullity, which would normally be sought by way of judicial review proceedings. The Court of Appeal has the power to set aside, amend or suspend a decision of the full bench, but it was unclear whether any orders could be granted by the Court that could invalidate or otherwise affect the certification decision itself. The respondents argued that the hearing of the appeal by the Court of Appeal would have no practical effect given its inability to affect the certification decision.

The Court of Appeal found that the appeal was futile, as it could not affect the certification decision. The line of authority suggested that where a decision of the Court would be futile, the appropriate course was to permanently stay the proceedings. The Court of Appeal permanently stayed the appeal on the ground that it was futile. The parties were ordered to exchange and deliver submissions in relation to costs within seven days.