Last week, the Full Federal Court (Bromwich, O’Callaghan and Colvin JJ) issued its decision in relation to the matter of Johnson v CUB Pty Ltd [2021] FCAFC 219, which concerned an application for judicial review of the Full Bench of the Fair Work Commission’s decision to quash a reinstatement decision by the Fair Work Commission (FWC) of a labour hire worker.
Background
The applicant was engaged as a maintenance fitter by Chelgrave Contracting Australia Pty Ltd (the second respondent) which supplied labour to the first respondent, CUB. CUB exercised its contractual rights to remove the applicant from its site – as host employers typically have the right to do.
The applicant’s removal from site resulted in his termination and, in the subsequent unfair dismissal application, a Commissioner of the FWC ordered the applicant’s reinstatement. CUB appealed the decision at first instance and the Full Bench granted permission to appeal and quashed the reinstatement decision finding that Chelgrave was unable to comply with the reinstatement order because of CUB’s contractual right to exclude the applicant from its premises.
The applicant applied for judicial review of the decision of the Full Bench, seeking an order in the nature of certiorari quashing the decision, and an order in the nature of mandamus requiring the Full Bench to determine CUB’s appeal according to law.[1]
Judicial review
The thrust of the application for judicial review was that the Full Bench misunderstood the nature of the reinstatement provisions in s. 390 and 391 of the Fair Work Act 2009 (FW Act), in that an order under s. 391 for reinstatement would operate to require CUB to permit the applicant’s reinstatement.[2]
The Full Court (Bromwich and O’Callaghan JJ) found that:
- It is not possible to find in s 390(1)(a) any means of compelling CUB to surrender not only its contractual rights to prevent Mr Johnson from entering its premises, but perhaps even more importantly its ordinary common law rights to decide who may and may not enter its property.[3]
- The latter rights are protected by the law of trespass, especially from incursion by or on the authority of the executive, for which express authority and strict compliance with any conditions is required.[4]
- The Full Bench was correct to find that Chelgrave had no contractual power to force CUB to allow Mr Johnson access to their site after his removal; and also correct to find that an error of principle had occurred in that the Commissioner had made an order with which Chelgrave was unable to comply with given CUB’s stance.[5]
Key takeaway
This decision should provide comfort to host employers that they can safely rely on appropriately drafted exclusionary clauses in their labour hire contracts.
If you would like to discuss this decision with us, please contact our Workplace Relations & Safety team.
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[1] Johnson v CUB Pty Ltd [2021] FCAFC 219 at [3]
[2] Ibid [10]
[3] Ibid [32]
[4] Ibid
[5] Ivid [35]
