ResMed Limited v Australian Manufacturing Workers' Union

ResMed Limited brought an application for judicial review against the Australian Manufacturing Workers' Union (AMWU) and the Fair Work Commission (FWC) concerning a majority support determination (MSD) application made by the AMWU to the FWC. The AMWU applied to the FWC for a MSD under section 236 of the Fair Work Act 2009 (Cth) (FW Act) for a proposed single-enterprise agreement that would cover some, but not all, of ResMed's employees. The FWC initially found it had jurisdiction to entertain the MSD application, but later partially allowed an appeal by the AMWU that it was not a bargaining representative for certain classes of employees. ResMed sought a judicial review of the FWC's decisions, arguing that the second decision of the FWC Full Bench had apparent legal effect and that the Court should determine the question of whether identified employees fall within the AMWU's eligibility rule.

The legal issues before the Court were whether the second decision of the FWC Full Bench had apparent legal effect, and whether there was a reasonable prospect that ResMed would successfully prosecute the claim for judicial review of that decision. The Court held that the second decision of the FWC Full Bench did not have apparent legal effect, as it was an expression of opinion without any legal effect. Furthermore, the Court found that there was no reasonable prospect that ResMed would successfully prosecute the claim for judicial review of the second decision of the FWC Full Bench. Consequently, the Court dismissed the application for judicial review in so far as it sought orders in the nature of certiorari and mandamus. The Court held that there was no utility in entertaining an application for judicial review of a decision of the FWC Full Bench that constituted an expression of opinion with no legal effect.

In summary, the Court dismissed the amended originating application for relief filed by ResMed in so far as it sought orders in the nature of certiorari and mandamus. The question of costs of and incidental to the interlocutory application was reserved.