John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union

John Holland Pty Ltd, a construction company, sought judicial review of a decision of the Full Bench of Fair Work Australia, which had set aside a decision of a Deputy President approving an agreement entered into between John Holland and three employees. The Construction, Forestry, Mining and Energy Union (CFMEU) opposed the application. The key legal issues before the court were whether the Full Bench misapplied s 186(3) and s 186(3A) of the Fair Work Act 2009 (Cth) in finding that it could not determine whether the group of employees covered by the agreement was fairly chosen and whether John Holland was denied procedural fairness. The court held that the Full Bench misapplied s 186(3) and s 186(3A) of the Fair Work Act in that it failed to assess the fairness of the criteria chosen to identify the group of employees who were to be covered by the agreement. In doing so, the Full Bench misconceived its task. The court found that there was no basis in the language of s 186(3) or s 186(3A) which would condition the exercise by Fair Work Australia of the power under s 186(3) to approve an agreement upon Fair Work Australia being satisfied as to the number of employees who will, or may, during the term of the agreement, be covered by the agreement. The court did not need to address the issue of procedural fairness as it found that the Full Bench had misapplied the relevant statutory provisions. The court issued a writ in the nature of certiorari to quash the decision of the Full Bench. The court will hear from the parties whether, in the circumstances, a writ in the nature of mandamus is necessary, and any further orders.