Australian Rail Track Corporation Limited v Australian Rail, Tram and Bus Industry Union

Australian Rail Track Corporation Limited, an employer, sought judicial review of a decision made by the Full Bench of the Fair Work Commission. The Commission had ruled that it had jurisdiction to make an industrial action workplace determination, which the employer opposed. The Fair Work Act 2009 (Cth) defines "protected industrial action" as industrial action organised or engaged in by a bargaining representative of an employee who will be covered by the agreement against an employer who will be covered by the agreement "for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to be only about, permitted matters" and meets certain other requirements. The key legal issue was whether the Fair Work Commission had jurisdiction to make an industrial action workplace determination under s 266(1)(c) of the Fair Work Act 2009 (Cth). This required the court to determine the proper construction of s 266(1)(c), specifically whether it meant that the bargaining representatives for the agreement had not settled all of the matters that were at issue during bargaining for the agreement by the end of the post-industrial action negotiating period and before the approval of the enterprise agreement. The court held that the phrase "the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement" means that the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the proposed agreement by the end of the post-industrial action negotiating period and before the approval of the enterprise agreement. The court concluded that the Commission's jurisdiction was spent once the proposed agreement was made and approved. Consequently, writs of certiorari and prohibition should be issued to quash the decision of the Full Bench and prohibit it from proceeding to exercise that jurisdiction. There should be no order as to costs.