Johnson v Cub Pty Ltd

In Johnson v Cub Pty Ltd, Mr Chaya Johnson sought reinstatement to his former position as a C7 Maintenance Fitter at the CUB brewery site in Abbotsford. Mr Johnson, an employee of Chelgrave Contracting Australia Pty Ltd, a labour hire company, obtained an order for reinstatement against Chelgrave. CUB, the entity that employed Mr Johnson for the period in question, did not seek to be joined as a party to the proceedings. CUB subsequently appealed to the Full Bench of the Fair Work Commission (FWC), which quashed the reinstatement order on the basis that Chelgrave lacked the contractual power to compel CUB to allow Mr Johnson access to their site after his removal. The Full Bench concluded that reinstatement was inappropriate in all the circumstances.

The central legal issue before the court was whether the Full Bench of the FWC erred in quashing the reinstatement order. Specifically, the court had to determine if the Full Bench fell into jurisdictional error by misconceiving its duty, misunderstanding its jurisdiction, failing to apply itself to the prescribed question, or acting on a wrong principle. Additionally, the court considered whether the Full Bench made only a portion of the order that it was not empowered by s 391 to make.

The court concluded that both grounds of review failed. It found that the Full Bench had correctly identified that Chelgrave lacked the contractual power to force CUB to allow Mr Johnson access to their site after his removal. The court held that it was inappropriate to remit the matter to the Full Bench given the speculative nature of any potential compensation claim, especially since Mr Johnson had already received a redundancy payment and back pay dependent on the reinstatement order. Consequently, the court dismissed the originating application for judicial review.

The court made the following order: 1. The originating application be dismissed.