One Tree Community Services Inc v United Voice (No 2)

One Tree Community Services Inc, the applicant, sought to challenge the decision of the Fair Work Commission (FWC) under a dispute resolution clause in an enterprise agreement. United Voice, the respondent, defended the FWC's decision. The case was heard in the Federal Court of Australia. The primary legal issue was whether the FWC's exercise of arbitral power under the dispute resolution clause in the enterprise agreement was valid when the clause applied to a new employer who had not consented to the clause. The court had to determine if the new employer was deemed to have consented to the clause, and if not, whether the FWC's exercise of arbitral power would amount to an impermissible exercise of judicial power.

The court considered the relevant statutory provisions and the High Court's decision in the Private Arbitration case. It was established that a power to make a binding determination as to legal rights and liabilities is judicial power unless it is "private arbitral" power. The court found that the arbitral power in question was not private arbitral power because it was not based on the agreement of the parties. Instead, it was an exercise of judicial power by the FWC, which was not a Chapter III court. The court also noted that the new employer had not consented to the dispute resolution clause, and therefore, the FWC's exercise of arbitral power was invalid.

The court dismissed the application and ordered that the parties provide further proposed orders and submissions within 10 days. The court also noted that any additional orders would be determined on the papers unless otherwise ordered. The decision highlights the importance of ensuring that the exercise of arbitral power by the FWC is based on the agreement of the parties and does not amount to an impermissible exercise of judicial power.