Asmar v Fair Work Commission

This proceeding was brought by Ms Diana Asmar, the secretary of the ACTU National Union of Workers, and Ms Kimberley Kitching, the General Manager of the union, against the Fair Work Commission and others. The applicants sought an interlocutory injunction to restrain the Commission from proceeding with its inquiry into the alleged improper conduct of the applicants and others in obtaining right of entry permits under the Fair Work Act 2009 (Cth). The applicants argued that the Commission had no jurisdiction to conduct the inquiry without first determining its jurisdiction, and that the Commission had already acted in excess of its jurisdiction by issuing notices of potentially adverse findings and Terms of Inquiry. The applicants sought an injunction pending the determination of the jurisdictional issue, as well as leave to amend their originating application.

The court was required to determine whether an interlocutory injunction should be granted restraining the Commission from proceeding with its inquiry until it had determined its jurisdiction. The court considered the test for interlocutory relief and whether the applicants had established a prima facie case and that the balance of convenience favoured an injunction. The court also considered whether the Commission should be allowed to rule on its jurisdiction before the interlocutory injunction was decided. The court concluded that the grounds of challenge to the Commission's jurisdiction were reasonably arguable, and that it was arguably erroneous for the Commission to proceed without first ruling on its jurisdiction. The court found that a prima facie case had been established and that the balance of convenience favoured the grant of an injunction.

The court granted the applicants an interlocutory injunction restraining the Commission from proceeding further in relation to certain aspects of its inquiry until it had adjudicated upon and ruled on its jurisdiction. The injunction would be discharged if the Commission ruled on its jurisdiction prior to the hearing and determination of the proceeding. The court also granted the applicants leave to amend their originating application. The further hearing of the proceeding was adjourned to allow for directions. The costs of the applicants were to be their costs in the cause.