Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2)

Maersk Crewing Australia Pty Ltd sought declarations that the Fair Work Commission (FWC) lacked jurisdiction to make an arbitral award, and that the arbitral award was contrary to law. The Construction, Forestry, Maritime, Mining and Energy Union (Union) cross-claimed for failure to give effect to the arbitral award. The arbitral award determined that an additional steward was required on vessels, in accordance with the terms of an enterprise agreement. Maersk disputed the claim, arguing that the dispute had been resolved by an earlier agreement and that step one in the dispute resolution procedure had not been followed. The FWC rejected these contentions and upheld the Union's claim.

The Fair Work Act 2009 (Cth) provides for private arbitration by the FWC in the event of a dispute that remains unresolved after steps have been complied with. The FWC determined that the enterprise agreement required the additional steward and that the dispute resolution procedure had been followed. The FWC also found that the earlier agreement did not amend the enterprise agreement and that the dispute was separate and different from that raised by the earlier agreement. The Full Bench of the FWC refused permission to appeal the arbitral award.

The court considered the arbitral jurisdiction of the FWC and the issue of issue estoppel. The court found that the FWC had jurisdiction to make the arbitral award and that the issue of issue estoppel did not apply. The court also found that the Union's cross-claim was well-founded and that the arbitral award should be given effect. The court dismissed Maersk's application and ordered a hearing to determine any relief that should be granted on the cross-claim. The court listed the cross-claim for case management.