Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 28 February 2020
• Neutral Citation: [2020] FCAFC 27
• Date: 28 February 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd [2020] FCAFC 27

Appeal from:	Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd[2019] FCA 153 Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd (Federal Court of Australia, NSD 2058/2016, Orders dated 28 February 2019)
File number:	NSD 373 of 2019
Judges:	MCKERRACHER, FARRELL AND MARKOVIC JJ
Date of judgment:	28 February 2020
Catchwords:	CORPORATIONS – where declaration made that enterprise agreement is void and of no effect – where monies ordered to be held on trust pending outcome of appeal – where orders provided that monies be distributed to CFMMEU members with an interest in the trust monies if the appeal was dismissed or discontinued – where appeal to Full Court dismissed – where the question of distribution of trust monies remitted to the primary judge – where the primary judge ordered on the remitter that trust monies be distributed to the first respondent to be dealt with by its liquidators in accordance with their statutory responsibilities – whether the primary judge’s exercise of discretion miscarried – whether the primary judge erred in having regard to views of the Full Court – whether the primary judge erred in having regard to the nature of the proceeding – whether the primary judge erred in having regard to a potential contravention of s 596AB of the Corporations Act 2001 (Cth) – no error shown – leave to appeal granted – appeal dismissed ; PRACTICE AND PROCEDURE – applications to adduce further evidence on appeal – where the further evidence only became available after the first instance proceeding and was relevant to subject matter of appeal – where the further evidence responded to a new argument made on appeal by the other party – applications granted
Legislation:	Corporations Act 2001 (Cth) s 596AB Federal Court of Australia Act 1976 (Cth) s 27 Federal Court Rules 2011 (Cth) r 36.57
Cases cited:	Ashby v Slipper (2014) 219 FCR 322 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 House v The King (1936) 55 CLR 499 Reece v Webber (2011) 192 FCR 254
Date of hearing:	26 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	109
Counsel for the Applicant:	Mr B Walker SC and Ms C Howell
Counsel for the First Respondent:	Mr B O’Donnell QC and Mr E Robinson
Solicitor for the Applicant:	Slater & Gordon Lawyers
Solicitor for the First Respondent:	Allens
Solicitor for the Second Respondent:	Australian Government Solicitor

ORDERS

		NSD 373 of 2019
BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Applicant
AND:	ONE KEY WORKFORCE PTY LTD ACN 605 016 206 First Respondent ; FAIR WORK COMMISSION Second Respondent

JUDGES:	MCKERRACHER, FARRELL AND MARKOVIC JJ
DATE OF ORDER:	28 February 2020

THE COURT ORDERS THAT:

1. Leave be granted to the applicant to appeal from the orders made on 28 February 2019 in proceeding NSD 2058/2016 and to file its notice of appeal in the form of annexure PJP4 to the affidavit of Phillip John Pasfield sworn on 14 March 2019.

2. Leave be granted to the applicant to adduce further evidence in the appeal in the form of the affidavit at annexure PJP5 to the affidavit of Phillip John Pasfield sworn on 15 August 2019.

3. Leave be granted to the first respondent to adduce further evidence in the appeal in the form of the affidavit at annexure ADM-1 to the affidavit of Alexander David Monaghan sworn on 23 August 2019.

4. The appeal be dismissed.

5. Order 2 of the orders made on 20 March 2019 in proceeding NSD 2058/2016 be vacated.

6. The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. The applicant, Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applies for leave to appeal, and if leave is granted, appeals Order 1 of the orders made on 28 February 2019 that certain monies held in trust be discharged to the first respondent, One Key Workforce Pty Ltd (now One Key Workforce Pty Ltd (in liquidation)) (OKW), to be dealt with by its liquidators in accordance with their statutory responsibilities. The reasons for making that order were published on 20 February 2019 in Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd [2019] FCA 153 (PrimaryJudgment).

2. The application for leave to appeal and the appeal were heard together. Only the first respondent, OKW, participated in the proceeding. The second respondent, the Fair Work Commission (FWC), filed a submitting notice save in relation to the question of costs.

3. Both the CFMMEU and OKW filed applications to adduce further evidence in the appeal.

4. Before proceeding further it is convenient to set out the background to the appeal and the applications that are now before us.

Background

5. OKW, formerly known as RECS (Qld) Pty Ltd, was part of a group of companies which together operated a business known as One Key Resources. It was a labour hire business which on-hired its employees to clients in a range of industries including the black coal mining industry. OKW primarily hired employees as casual workers. Casual employment was not permitted under the Black Coal Mining Industry Award 2010 (Award).

6. Between March and August 2015 OKW recruited Messrs Kevan O’Brien, Reuben Raymond and Vernon Marfell as employees. In August 2015 a process was initiated by which each of Messrs O’Brien, Raymond and Marfell was invited to vote on a proposed enterprise agreement. On 25 August 2015, in response to an email request, each of those employees voted in favour of the proposed enterprise agreement.

7. The proposed enterprise agreement was then submitted to the FWC for approval and on 30 October 2015 the FWC granted its approval. The agreement as approved became known as the RECS (Qld) Pty Ltd Enterprise Agreement2015...