Construction, Forestry, Maritime, Mining and Energy Union v CPB Contractors Pty Ltd and the Australian Workers' Union

The Construction, Forestry, Maritime, Mining and Energy Union lodged an appeal against a decision of Commissioner McKinnon, who had approved a greenfields agreement between CPB Contractors Pty Ltd and the Australian Workers' Union. The Union argued that the agreement was not valid as it did not pertain to a genuine new enterprise as required by section 172(1)(b)(i) of the relevant legislation. The Full Bench of the Federal Court of Australia heard the appeal and had to determine whether the Commissioner's finding that the employer was establishing or proposing to establish a genuine new enterprise was supported by the evidence.

The legal issues before the court included the interpretation of the term 'genuine new enterprise' and the standard of proof required to establish this jurisdictional fact. The court had to assess whether the evidence presented was sufficient to support the Commissioner's decision. The Union argued that the evidence did not meet the required threshold, as it did not clearly demonstrate that CPB Contractors was establishing a new enterprise.

The Full Bench found that the evidence did not support the Commissioner's finding that the employer was establishing or proposing to establish a genuine new enterprise. The court held that the Union had discharged the onus of proving that the jurisdictional fact had not been established. Consequently, the appeal was upheld, and the decision to approve the Agreement was quashed. The Union's application to dismiss the agreement was also dismissed as a result of the quashing of the decision.