Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2)

The case of Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) involved a dispute between the Australian Rail, Tram and Bus Industry Union (the applicant) and Busways Northern Beaches Pty Ltd (the respondent), along with other related parties. The applicant challenged the approval by the Fair Work Commission (FWC) of an enterprise agreement (EA) between the respondent and the Transport Workers’ Union of Australia (the TWU). The applicant argued that the EA did not pertain to a "genuine new enterprise" and therefore the FWC lacked the jurisdiction to approve it. The central legal issues in this case were whether the FWC had the jurisdiction to approve the proposed EA under the Fair Work Act 2009 (Cth) and whether the respondent's enterprise was a "genuine new enterprise" within the meaning of that Act.

The Court found that the FWC did not have the jurisdiction to approve the proposed EA as it did not pertain to a "genuine new enterprise". The Court held that the FWC's assumption of statutory power to approve the EA should be corrected by the grant of relief substantially in the forms sought by the applicant. The Court concluded that the EA was not an agreement of a kind that could validly be approved under Part 2-4 of the FW Act. The Court found that the respondent's enterprise was not a "genuine new enterprise" as it was a continuation of the public bus transportation services that were previously provided by the State Transit Authority of New South Wales. The Court considered that the respondent's enterprise was not "genuinely new" as it involved the same services, routes, and timetables as those previously provided by the State Transit Authority.

In light of the Court's findings, it granted prerogative relief to the applicant in the form of writs of certiorari and prohibition. The writs of certiorari removed into the Court and quashed the FWC's approval decisions, while the writs of prohibition required the FWC to take no further steps to determine the applications that were the subject of those decisions. The Court's decision highlights the importance of the "genuine new enterprise" requirement in the context of greenfields agreements and the need for the FWC to carefully consider the nature of the enterprise when approving such agreements.