Dispute resolution procedure binds employer to full bench error of law

Many employers might be surprised to learn that they can be bound by a decision of a Full Bench of the Fair Work Commission (FWC) that is made in error of law. Yet, this was the result for Linfox of the decision of Justice Rares of the Federal Court in Linfox Australia Pty Ltd v Transport Workers' Union of Australia [2013] FCA 659 (21 June 2013).

In Linfox, Rares J held that the Court had no jurisdiction to review an error of law made by a Full Bench of Fair Work Australia (FWA; now the FWC), because the tribunal's decision was made under a dispute resolution procedure in Linfox's enterprise agreement, which entitled the Full Bench to act as a private arbitrator to determine all matters of fact and law in the course of determining a dispute.