The Australian Workers' Union

[2011] FWA 688

[2011] FWA 688

FAIR WORK AUSTRALIA

DECISION

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

The Australian Workers' Union
(AG2010/18606)

COMMISSIONER LEWIN MELBOURNE, 2 FEBRUARY 2011

Australian Ecosystems Pty Ltd and AWU Victorian Desalination Project Greenfields Agreement 2009.

[1] This decision concerns the application for approval of a greenfields agreement pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was lodged in the Tribunal by the Australian Workers’ Union (the AWU). The application relates to the Australian Ecosystems Pty Ltd and AWU Victorian Desalination Project Greenfields Agreement 2009 (the Agreement).

[2] Section 172 of the Act deals with the making of enterprise agreements and is set out below:

“172 Making an enterprise agreement

Enterprise agreements may be made about permitted matters

(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d) how the agreement will operate.

Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.

Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.

Single-enterprise agreements

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi-enterprise agreements

(3) Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and

(ii) the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Greenfields agreements

(4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

Single interest employers

(5) Two or more employers are single interest employers if:

(a) the employers are engaged in a joint venture or common enterprise; or

(b) the employers are related bodies corporate; or

(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.”

[3] On 1 November 2010, My Associate wrote to Mr Winter of the AWU seeking clarification as to why, for the purposes of determining that the Agreement was made, the Agreement had been characterised as a greenfields agreement having regard to the information provided at questions 1.5 and 1.6 of the Form 20—Employer’s Declaration in Support of Application for Approval of Greenfields Agreement.

[4] At question 1.5 of the Form 20, the employer indicated that the agreement did not cover a genuine new enterprise that the employer is establishing or is proposing to establish. Further, at question 1.6 of the Form 20, the employer declared that it had employed persons who will be necessary for the normal conduct of the new business and will be covered by the enterprise Agreement at the date the agreement was made.

[5] On the basis of the answers provided at questions 1.5 and 1.6 of the Agreement, My Associate indicated to Mr Winter in the email message of 1 November 2010, that I had formed a view that the agreement may be more appropriately classified as a multi-enterprise Agreement under s.172 of the Act.

[6] On 10 November 2010, Mr Anthony Massaro, a solicitor for the Company, filed a response to email message of 1 November 2010, wherein he indicated that he was of the view that the Agreement was not properly characterised as a greenfields agreement, and further, that he was of the view that the application could not be successful on that basis.

[7] On 17 November 2010, a second email was received from Mr Massaro confirming his view that the Agreement is not a greenfields agreement and that the company was commencing a bargaining process with a view to lodging a new application.

[8] On 18 November 2010, My Associate wrote to Mr Massaro to confirm receipt of the message of 17 November 2010, and asking Mr Massaro to confirm whether the notification of 17 November 2010 should be taken as discontinuance of this application. On the same day, my Associate wrote to Mr Winter requesting that he file a notice of discontinuance in Fair Work Australia if it was the intention of the AWU to withdraw the application.

[9] No response was received from either enquiry.

[10] On 10 January 2011, My Associate wrote to Ms Winter an Ms Massaro to request that a notice of discontinuance be filed if the parties intended to withdraw the application. No response was received in relation to this enquiry.

[11] I am not satisfied that the Agreement is a greenfields agreement for the purpose of determining whether or not the Agreement was made pursuant to s.172 of the Act. The Agreement has not been made within the provisions of s.172 of the Act. The application is dismissed. An order will issue accordingly.

COMMISSIONER

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