DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/3944)

COMMISSIONER MCKINNON

MELBOURNE, 4 MAY 2021

Greenfields agreement – application for approval – insufficient evidentiary basis – application dismissed.

[1] The Trustee for DeMenna Family Trust (the Employer) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia have purportedly made a greenfields agreement known as the Rail Power Solutions and ETU Victorian Rail Infrastructure Greenfields Agreement 2018-2021 (the Agreement) under section 172(2)(b) of the Act.

[2] The Agreement is expressed to cover “The Trustee for DeMenna Family Trust T/A Rail Power Solutions | ABN: 92 401 405 997(“the Employer”), and associated entities” 1. Further information was sought about the associated entities of the Employer, and whether the Agreement relates to a genuine new enterprise that the Employer is establishing or proposes to establish.

[3] The application was listed for hearing on 1 April 2021 and for e-hearing on 3 May 2021. The Employer did not attend the hearing and did not respond to an invitation to participate in the e-hearing. The Union was not able to assist further with my inquiries about the application.

[4] On the material before me, I am not satisfied that the application is capable of approval, because I am not satisfied that the Agreement relates to a genuine new enterprise that the Employer is establishing or proposing to establish.

[5] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 See cl 2(a).

CaseChat Overview and Summary

In the matter of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the union sought approval of a Greenfields agreement under the Fair Work Act 2009. The union argued that the agreement was necessary to facilitate the development of new industries in regional areas and to provide a framework for fair and equitable employment terms. The employer contested the application, asserting that the union had not provided a sufficient evidentiary basis to support its claims.

The court was required to determine whether the union had demonstrated a sufficient evidentiary basis to support the approval of the Greenfields agreement. The court considered the evidence provided by the union, including expert reports and economic data, and evaluated whether this evidence was sufficient to establish the need for the agreement and its potential benefits. The court also assessed the employer's arguments against the union's application, including concerns about the potential impact of the agreement on existing employees and the broader labour market.

The court found that the union had not provided a sufficient evidentiary basis to support the approval of the Greenfields agreement. The court concluded that the evidence provided by the union was inadequate to establish the need for the agreement or its potential benefits, and that the employer's concerns about the potential impact on existing employees and the labour market were valid. As a result, the court dismissed the union's application for approval of the Greenfields agreement.

The court's decision in this matter highlights the importance of providing a robust evidentiary basis when seeking approval of a Greenfields agreement. The union's failure to provide sufficient evidence to support its claims ultimately led to the dismissal of its application. This case serves as a reminder to unions and employers alike of the importance of carefully considering the evidence when seeking to establish the need for a Greenfields agreement, and of the need to address potential concerns about the impact on existing employees and the broader labour market.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established