Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

Maersk Crewing Australia Pty Ltd sought declarations from the Court that the Fair Work Commission (FWC) lacked jurisdiction to make an arbitral award in a dispute over manning levels on vessels. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) opposed the application, asserting that the dispute resolution procedure within the Enterprise Agreement (EA) was followed, and the FWC had jurisdiction. The primary judge dismissed Maersk's application, leading to the appeal. The legal issues involved the interpretation of the terms 'dispute' and 'accord and satisfaction' in the Fair Work Act 2009 (Cth), as well as the enforceability of a separate agreement between Maersk and the CFMMEU. The Court examined whether the separate agreement constituted an accord and satisfaction that could modify the EA or circumvent the arbitral jurisdiction of the FWC.

The Full Court held that the separate agreement between Maersk and the CFMMEU did not resolve the underlying dispute, and therefore, the FWC retained jurisdiction to arbitrate. The Court reasoned that the separate agreement was not intended to create contractual relations that could modify the EA or avoid the arbitral jurisdiction of the FWC. The dispute remained unresolved throughout the dispute resolution procedure. The Court found that the separate agreement was not an accord and satisfaction because it did not settle the underlying dispute. The Court also rejected Maersk's reliance on the Energy Australia decision, which involved the binding effect of an arbitral determination. The Full Court concluded that the separate agreement did not have binding effect.

The appeal was dismissed, and the matter was remitted to the primary judge for consideration of the relief, if any, to which the CFMMEU was entitled on the cross-claim. The Court emphasised the importance of following the dispute resolution procedure within the EA and the role of the FWC in resolving disputes under the agreement. The decision underscored the necessity of adhering to the arbitral process as outlined in the EA and the limitations of private agreements in circumventing the jurisdiction of the FWC.