United Voice v MSS Security Pty Ltd

The case of United Voice v MSS Security Pty Ltd involved the union United Voice, appealing against decisions made by the Fair Work Commission (FWC) regarding an enterprise agreement. The union argued that the FWC had failed to properly apply the better off overall test, as required under the Fair Work Act 2009 (Cth), when approving the enterprise agreement. The union's appeal against the FWC's decision was initially dismissed in the Federal Court, but it later sought a writ of certiorari to quash the FWC's decisions and a writ of mandamus to compel the FWC to hear and determine the appeal correctly. The primary issues before the court were whether the Federal Court should construe the enterprise agreement to determine if it satisfied the better off overall test and whether the Federal Court should exercise jurisdiction to construe the agreement.

The court found that the union's application to quash the Commissioner’s decision was misconceived, as the union had already invoked its right of appeal against that decision. The court held that the Federal Court's jurisdiction to issue a writ of certiorari or mandamus was supervisory, and it was not the role of the Federal Court to determine whether the better off overall test was satisfied. The court reasoned that the questions of construction of the agreement and the better off overall test involved matters of fact and degree, which were within the purview of the FWC. The court further noted that even if the better off overall test were not satisfied, the FWC had the discretion to approve the agreement if it was satisfied that exceptional circumstances existed, which would not be contrary to the public interest. Therefore, the Federal Court could not determine whether the Full Bench could have approved the agreement in the exercise of its powers under the Act. The court concluded that the FWC had committed a jurisdictional error by failing to properly consider the union’s argument regarding the satisfaction of the better off overall test, and thus, a writ of certiorari should issue to quash the FWC’s decisions, and a writ of mandamus should issue to require the FWC to hear and determine the union’s appeal according to law.

The final orders made by the court included issuing a writ of certiorari to remove and quash the decisions made by the FWC on 12 November 2015 and 1 December 2015, and a writ of mandamus to require the FWC to hear and determine the union’s appeal in accordance with the law. The union’s application for the Federal Court to construe the enterprise agreement and determine the satisfaction of the better off overall test was dismissed, and the appeal was remitted to the FWC for proper consideration.