Asmar v Fair Work Commission

The case of Asmar v Fair Work Commission involved the applicants, Asmar and others, challenging the jurisdiction of the Fair Work Commission (FWC) to conduct an inquiry under Part 3-4 of the Fair Work Act 2009 (Cth) concerning the revocation of their rights of entry permits. The applicants argued that the FWC lacked the jurisdiction to conduct the inquiry as it did not stem from a dispute within the meaning of the Act. The Fair Work Commission, in turn, argued that it had the requisite jurisdiction to conduct the inquiry. The legal issues before the court were whether the FWC had the jurisdiction to conduct the inquiry, and if so, whether the applicants' challenge to the jurisdiction was valid.

The court considered the relevant statutory provisions, including sections 598 and 603 of the Fair Work Act, and section 33(3) of the Acts Interpretation Act 1901 (Cth). The court found that the FWC had the power to revoke the applicants' entry permits and that the jurisdiction to conduct the inquiry was ancillary to the power to revoke. The court held that the applicants' argument that section 603 did not apply was flawed and that section 33(3) of the AIA could be an adjunct to section 512. The court further held that section 2(2) of the AIA could exclude the operation of section 33(3) if there was a contrary intention, which could be gleaned from the broad scope of section 603.

The court dismissed the applicants' originating application, finding that the FWC had the jurisdiction to conduct the inquiry and that the applicants' challenge to the jurisdiction was invalid. The court held that there was no dispute within the meaning of the Act and that the dispute resolution mechanism was arbitration, suggesting an inter-partes contest rather than a dispute between a permit holder and the Commission. The court concluded that the FWC's role was to adjudicate on an inter-partes dispute rather than to be one of the disputants.

The final order of the court was that the applicants' originating application was dismissed. The applicants were not granted leave to appeal the decision to the Full Court of the Federal Court.