Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

The Australian Building and Construction Commissioner (ABCC) sought judicial review of two decisions of the Fair Work Commission (FWC). The ABCC applied for right of entry permits for two individuals under Part 3-4 of the Fair Work Act 2009 (Cth), and the FWC granted the permits. The Construction, Forestry, Mining and Energy Union (CFMEU) appealed the decision and the FWC Full Bench dismissed the appeal. The ABCC sought judicial review of both decisions, arguing that they were affected by jurisdictional error. The primary issues for the court were whether the decisions were amenable to certiorari and whether the decisions were affected by jurisdictional error. The court found that both decisions were amenable to certiorari. It also found that the FWC at first instance failed to take into account relevant considerations under s 513(1)(g) of the Fair Work Act 2009 (Cth), and that the Full Bench erred in referring to s 400 of the Fair Work Act 2009 (Cth). However, the court found that the jurisdictional errors did not go to the root of the decisions and therefore did not warrant quashing the decisions. The application for judicial review was dismissed.

The court found that the FWC at first instance failed to take into account relevant considerations when it did not properly consider the CFMEU's responsibility for the contraventions of the union while Mr Ravbar was Secretary. The court also found that the Full Bench erred in referring to s 400 of the Fair Work Act 2009 (Cth) when it should have referred to s 513(1)(g) of the Fair Work Act 2009 (Cth). However, the court found that these errors did not go to the root of the decisions and therefore did not warrant quashing the decisions. The court found that the FWC at first instance gave proper consideration to the other factors set out in s 513 of the Fair Work Act 2009 (Cth), and that the Full Bench properly considered the appeal. The court found that the FWC's consideration of the permit qualification matters was comprehensive and that the Full Bench properly considered the appeal. The court found that the decisions were not affected by jurisdictional error to the extent that they warranted quashing the decisions. The application for judicial review was dismissed.