Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry

In the matter of Construction, Forestry, Maritime, Mining and Energy Union versus Noorton Pty Ltd trading as Manly Fast Ferry, the dispute arose from decisions made by Deputy President Sams at Sydney on 7 and 23 August 2018. The union appealed against the decisions in matter number AG2017/3080, questioning whether employees asked to vote on an agreement were "employed at the time" and whether the agreement met the better off overall test. The union also sought permission to appeal and argued for an error in the decision-making process. Permission to appeal was granted, and the appeal was ultimately upheld.

The central legal issues the court addressed were whether the employees who were asked to vote on the agreement were indeed employed at the relevant time, and whether the agreement satisfied the better off overall test under the Fair Work Act 2009. The union contended that some employees were not employed at the time they were asked to vote, and that the agreement did not meet the better off overall test. They further argued that the tribunal had erred in its decision-making process.

The court found that there was indeed an error in the tribunal's approach to the first issue, as it did not correctly apply the law regarding the employment status of the employees at the time they were asked to vote. Additionally, the court determined that the tribunal had failed to properly consider whether the agreement met the better off overall test. As a result, the appeal was upheld, the decisions were quashed, and the application to approve the agreement was remitted to a Member for reconsideration.