Boulos v MRVL Investments Pty Ltd (No 2)

In Boulos v MRVL Investments Pty Ltd (No 2), the Federal Court examined the validity of certain decisions made by the Director of the Workplace Authority under the Workplace Relations Act 1996 (Cth) (WR Act). The case involved the Merivale Agreement, a collective agreement between an employer and employees, which had undergone amendments in an attempt to meet the 'fairness test' required by the WR Act. The central dispute centred on the legal consequences of these amendments and decisions, specifically whether the Merivale Agreement could be varied post-amendments and if certain decisions by the Director could be rescinded.

The primary legal issues included whether clause 3 of Schedule 7B of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) precluded a variation of the Merivale Agreement by an undertaking under section 346R(2)(b) of the WR Act, and whether the Director had the authority to revoke a notice under section 346P or a decision under section 346M(2) that a collective agreement did not pass the fairness test. The court also considered whether these decisions, if flawed, could remain valid unless set aside by the Court.

The court ruled that clause 3 of Schedule 7B did not prevent a variation of the Merivale Agreement by way of an undertaking. Additionally, the court determined that the Director lacked the power to revoke a notice under section 346P or a decision under section 346M(2) of the WR Act. This meant that such decisions could not be rescinded unilaterally by the Director. Furthermore, the court held that if these decisions were flawed, they could not remain valid unless explicitly set aside by the Court.

The court ordered the parties to confer and provide a joint position within 14 days, articulating the appropriate answers to the separate question posed. No order was made as to costs.