Admin File Number: ADM/12/630
Matter reviewed:  FWAFB 8958
Drake SDP, Harrison DP, Gooley C
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – wages – allowances – ss.604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision pursuant to dispute resolution procedure – decision concerned correct rate of pay during overtime meal breaks – satisfied original decision in error – satisfied original decision failed to give sufficient consideration to text of agreement – satisfied proper construction of agreement required payment at overtime rates – appeal allowed – original decision quashed.
Fair Work Division of Federal Court of Australia
Application [NSD/1918/2012] under section 562 of the FW Act and section 39B of the Judiciary Act filed 12 March 2013.
Listed for first directions on 8 February 2012
Listed for a directions hearing on 15 February 2013 before Rares J. Listed for hearing in Sydney on 21 June 2013.
Order handed down 21 June 2013 - Application dismissed
JURISDICTION – where enterprise agreement provided expressly for private arbitration and appeal – meaning of agreement that arbitrator's decision on appeal be "binding" – whether any right to judicial review of decision given by a Full Bench of Fair Work Commission as private arbitrator in an appeal – whether absence of "final and" allowed right of judicial review of private arbitration decision – whether Full Bench of Fair Work Commission had made a decision contrary to s 739(5) of the Fair Work Act 2009 (Cth) thereby giving the Federal Court jurisdiction to grant constitutional writ relief
Held: enterprise agreement expressly adopted dispute resolution mechanism of private arbitration with a specific right of appeal, the decision in which was to be final. Consequently, Full Bench, acting as a private arbitrator, had power to decide finally questions of fact and law.