One Tree Community Service Inc v United Workers’ Union [2021] FCAFC 15 (24 February 2021) (Flick, Bromberg and Kerr JJ)


Catchwords:


CONSTITUTIONAL LAW – judicial power of the Commonwealth – dispute resolution clause (cl 77) in an enterprise agreement made under the Fair Work Act 2009 (Cth) provided for binding arbitration – whether in resolving by arbitration a dispute involving the employer brought pursuant to cl 77, the Fair Work Commission was purporting to exercise judicial power – where employer was not involved in the making of the enterprise agreement but became bound by that agreement by reason of the operation of the transfer of business provisions in Pt 2-8 of the Fair Work Act – distinction between a private arbitration and the exercise of judicial power discussed – whether the source of the authority of the Fair Work Commission to arbitrate was the consent of the disputants or the sovereign power of the Commonwealth – whether only an inter partes agreement made between the disputants could provide the requisite consensual foundation for a private arbitration – whether the requisite consent of the employer was established by its voluntary assumption of the binding force of the enterprise agreement and cl 77 thereof upon the employer taking steps to trigger the transfer of business provisions in Pt 2-8.

INDUSTRIAL LAW – s 739 of the Fair Work Act – whether in resolving by arbitration a dispute pursuant to a dispute resolution clause in an enterprise agreement the Fair Work Commission was purporting to exercise judicial power.