Matter:  FWCFB 6047
Ross J; Gostencnik DP; Lee C
The Full Bench found that a model clause did not cancel out consultation requirements in the agreement.
Logan, Wigney & Anderson JJ
The Full Court ordered a constitutional writ of mandamus be issued to the twenty second respondent, the Fair Work Commission, requiring the Commission to answer, by decision, such question or questions which were posed to it for answering by the Commission’s President under the Fair Work Act 2009 (Cth).
Rares, Logan & Wigney JJ
The Court overturned the decision of the Full Bench of the Commission, quashing orders 3 and 4 made on 5 March 2020, and declaring that the Model Consultation Term (MCT) did become a term of the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015, to the exclusion of consultation provisions in the EA and relevant award.
The Court concluded that:
The Full Bench was correct to conclude that the EA did not comply with the requirements of s 205 of the FW Act, and so the MCT was a term of the EA, by force of s205(2).
However, where the MCT is made a term of an EA by force of s 205(2), any inconsistent terms of the EA cannot interfere with the operation of the MCT. The MCT takes precedence over other EA clauses, and cannot be read down as part of construing the EA. The MCT then applied to the exclusion of other EA clauses regarding alternative consultation rights and processes.