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Australian Workers' Union v Leighton Contractors Pty Ltd

Australian Workers' Union v Leighton Contractors Pty Ltd

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FEDERAL COURT OF AUSTRALIA
Australian Workers’ Union v Leighton Contractors Pty Limited [2013] FCAFC 4

Citation: Australian Workers’ Union v Leighton Contractors Pty Limited [2013] FCAFC 4

Parties: THE AUSTRALIAN WORKERS' UNION v LEIGHTON CONTRACTORS PTY LIMITED, BECHTEL AUSTRALIA PTY LIMITED, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION (AMWU) (188V), COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and FAIR WORK AUSTRALIA

File number: QUD 178 of 2012

Judges: DOWSETT, MCKERRACHER and KATZMANN JJ

Date of judgment: 29 January 2013

Catchwords:
INDUSTRIAL LAW – Enterprise agreements – greenfields agreements ‑ approval by Fair Work Australia (“FWA”) – a trade union that was not a party to the agreements applied to the Full Bench of FWA for permission to appeal against FWA decision to approve agreements arguing that agreements were signed on behalf of one union by an officer who lacked authority under the union’s rules – Full Bench of FWA denied permission to appeal – whether agreements were made within meaning of the Fair Work Act 2009 (Cth) – proper construction of union’s rules – indoor management rule – application of s 793 of the Fair Work Act – ratification by conduct

ADMINISTRATIVE LAW – Application for constitutional writs against Full Bench of FWA – Full Bench of FWA denied permission to appeal – whether any jurisdictional error in doing so

Legislation:
Fair Work Act 2009 (Cth) ss 12, 171, 172, 182(3), 186, 604, 793
Fair Work (Registered Organisations) Act 2009 (Cth) ss 27, 141
Workplace Relations Act 1996 (Cth) ss 349, 826

Explanatory Memorandum, Fair Work Bill 2008 (Cth)

Cases cited:
Alexander Ward & Co Ltd v Samyang Navigation Co Ltd [1975] 1 WLR 673
Amalgamated Society of Engineers v Smith (1913) 16 CLR 537
Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119
Calvin v Carr [1980] AC 574
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194
Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146
Conquo v Jackson [2009] FCA 45
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72
Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Magnal) Ltd [1964] 2 QB 480
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530
J Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch (1992) 111 ALR 502
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kucks v CSR Ltd (1996) 66 IR 182
Morris v Kanssen [1945] AC 459
Re Construction, Forestry Mining Energy Union, Ex parte WJ Deane & Sons Pty Limited (1994) 181 CLR 539
Royal British Bank v Turquand (1856) 6 E1 & B1 327; 119 ER 886
Scott v Bagshaw (1999) 92 FCR 424
Trade Practices Commission v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCAFC 4
Decision Date: 29 January 2013

CaseChat Overview and Summary

The Australian Workers' Union (AWU) sought judicial review of a decision by the Full Bench of Fair Work Australia (FWA) that had denied their application for permission to appeal against FWA's decision to approve enterprise agreements. The AWU argued that the agreements were signed on behalf of the union by an officer who lacked the requisite authority under the union's rules. The agreements in question were between the AWU, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the Building Workers' Industrial Union (BWIU) and Leighton Contractors Pty Ltd (Leighton). The AWU claimed that the agreements were not valid because the officer who signed them did not have the authority to do so under the union's rules.

The court was required to decide whether the agreements were made within the meaning of the Fair Work Act 2009 (Cth), and whether there was any jurisdictional error in the Full Bench's decision to deny the AWU permission to appeal. The court considered the proper construction of the union's rules, the indoor management rule, and section 793 of the Fair Work Act. The court also considered whether the agreements were ratified by the conduct of the parties, and whether the AWU's objection to the agreements was raised within a reasonable time.

The court found that the agreements were made within the meaning of the Fair Work Act, and that the Full Bench did not make any jurisdictional error in denying the AWU permission to appeal. The court held that the indoor management rule applied, and that the agreements were ratified by the conduct of the parties. The court also found that the AWU's objection to the agreements was raised within a reasonable time. The court held that the AWU's application for review should be dismissed, and that any application for costs should be made in writing within seven days, supported by written submissions, and any party opposing such an application should respond in writing within seven days of receipt of those submissions.

Orders

Orders of the court

1. The application be dismissed.

2. Any party wishing to apply for costs make application in writing within seven days, supported by written submissions, and any party opposing such an application respond in writing within seven days of receipt of those submissions.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As the authors of Bowstead put it (at [2-048]), ratification should be regarded as providing a normal case of agency but one in which the intention of the parties is given effect to retrospectively. Ratification must occur within a time that is reasonable in all the circumstances. Here, it appears the AWU’s position was made known to the parties within a couple of weeks of the signing of the agreements and ever since the CFMEU has stood by them. CONCLUSION It follows that the application should be dismissed. I would add that, even if I were persuaded that the decision of the Full Bench was affected by jurisdictional error, in circumstances where the only defect said to exist concerns a matter of the internal management of one of four parties to the agreements where all the parties to those agreements seek to uphold them, as a matter of discretion I would refuse relief. No application was made for costs. I would propose that if any party wished to apply for costs, it should do so in writing within seven days, supported by written submissions. Any party opposing such an application should respond in writing within seven days of receipt of those submissions. The Court would then determine the application on the papers.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Australian Workers’ Union v Leighton Contractors Pty Limited [2013] FCAFC 4
Parties:		THE AUSTRALIAN WORKERS' UNION v LEIGHTON CONTRACTORS PTY LIMITED, BECHTEL AUSTRALIA PTY LIMITED, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION (AMWU) (188V), COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and FAIR WORK AUSTRALIA
File number:		QUD 178 of 2012
Judges:		DOWSETT, MCKERRACHER and KATZMANN JJ
Date of judgment:		29 January 2013
Catchwords:		INDUSTRIAL LAW – Enterprise agreements – greenfields agreements ‑ approval by Fair Work Australia (“FWA”) – a trade union that was not a party to the agreements applied to the Full Bench of FWA for permission to appeal against FWA decision to approve agreements arguing that agreements were signed on behalf of one union by an officer who lacked authority under the union’s rules – Full Bench of FWA denied permission to appeal – whether agreements were made within meaning of the Fair Work Act 2009 (Cth) – proper construction of union’s rules – indoor management rule – application of s 793 of the Fair Work Act – ratification by conduct ADMINISTRATIVE LAW – Application for constitutional writs against Full Bench of FWA – Full Bench of FWA denied permission to appeal – whether any jurisdictional error in doing so
Legislation:		Fair Work Act 2009 (Cth) ss 12, 171, 172, 182(3), 186, 604, 793 Fair Work (Registered Organisations) Act 2009 (Cth) ss 27, 141 Workplace Relations Act 1996 (Cth) ss 349, 826 Explanatory Memorandum, Fair Work Bill 2008 (Cth)
Cases cited:		Alexander Ward & Co Ltd v Samyang Navigation Co Ltd [1975] 1 WLR 673 Amalgamated Society of Engineers v Smith (1913) 16 CLR 537 Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 Calvin v Carr [1980] AC 574 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146 Conquo v Jackson [2009] FCA 45 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Magnal) Ltd [1964] 2 QB 480 Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 J Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch (1992) 111 ALR 502 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Kucks v CSR Ltd (1996) 66 IR 182 Morris v Kanssen [1945] AC 459 Re Construction, Forestry Mining Energy Union, Ex parte WJ Deane & Sons Pty Limited (1994) 181 CLR 539 Royal British Bank v Turquand (1856) 6 E1 & B1 327; 119 ER 886 Scott v Bagshaw (1999) 92 FCR 424 Trade Practices Commission v…