Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia

In the case of Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia, the dispute concerned an application made by the Association to Fair Work Australia for a "bargaining order" after negotiations for an enterprise agreement had reached an impasse. Endeavour Coal, the respondent, argued that the orders made by Fair Work Australia went beyond the powers granted under the Fair Work Act. The Full Bench of the Federal Court of Australia was called upon to determine whether the orders were within the power of Fair Work Australia and whether they contravened the provisions of the Fair Work Act.

The primary legal issues the court had to decide were whether the orders made by Fair Work Australia were within the scope of its statutory powers and whether they exceeded the limitations set by the Fair Work Act. Specifically, the court had to determine if the power to make bargaining orders was confined to ensuring compliance with good faith bargaining requirements or if it could require concessions or agreement on terms.

The Full Bench of the Federal Court held that while the requirement to bargain in good faith was clear, the formulation of orders to enforce this requirement without imposing an obligation to make concessions or reach an agreement on terms was problematic. The court found that Orders 1, 3, and 4 made by the Full Bench were in excess of the power conferred by sections 228 and 230(4) and 231 of the Fair Work Act. These orders were therefore set aside. The court also noted the inherent tension between requiring good faith bargaining and prohibiting the imposition of an obligation to make concessions or reach agreement. Despite the detailed submissions from Endeavour Coal's counsel, the court concluded that the meaning of the good faith bargaining requirements was straightforward but formulating the orders without overstepping the statutory boundaries was difficult.

The court ordered that the parties were to bring in Short Minutes of Orders within 14 days to give effect to the reasons outlined in the judgment. This directive was in accordance with Rule 39.32 of the Federal Court Rules 2011.