The Commission confirmed that its jurisdiction depended on the fact that it had to establish, on all the evidence, that a Greenfields agreement referred to a genuine new business that the employer intended to found or create and that the employer did not employ any person necessary for the normal conduct of that undertaking, which falls within the agreement.  The FWC focuses on the objectiveness and type of business to which the proposed green agreement applies and its novelty in relation to the employer`s business to be determined at the time of the agreement.  An enterprise agreement sets out the minimum conditions of employment between one or more employers and their employees or a group of their workers. The agreement may either be isolated from another arbitration decision or may include certain conditions of the parents` price. In order to approve the Greenfields agreement proposal, the FWC must be satisfied that this agreement would also be subject to the FwC agreement, in which the FWC would have to be satisfied that the covered workers` group was chosen fairly (i.e. geographically, operationally or from a different organisation). In this conclusion, they examined the purpose for which s 194 (b) had been adopted and the “absurdities” it should avoid, i.e. the removal of opt-out clauses contained in previous enterprise agreements, as in the case of Newlands Coal Pty Ltd/Construction, Forestry, Mining and Energy Union  FWAFB 7325. The Newlands Coal Enterprise Agreement contained a specific exemption clause that provided that the enterprise agreement included workers in the classifications of the agreement, unless a worker selected in writing at any time was included in the agreement. In light of the example of this type of opt-out clause, the Court contradicted Full Bench`s assertion that the wording of Clause 3.3 regarding the mechanism for establishing and approving a new site-specific agreement was either a “method” or a “choice” within the meaning of s 194 (ba).
The Court found that Clause 3.3 stated the intention that a future enterprise agreement specific to the project or location would cover CPB and all staff members of that particular project or site, excluding the agreement, and that an enterprise agreement could do so using job descriptions identifying the employment covered by that agreement as project or site specific. Their honours felt that it was essential that the term itself be the method by which the employer or worker could make an effective choice (unilaterally or otherwise) in order not to be subject to the agreement. The Bundesgerichtshof found that Full Bench had apparently made an erroneous assumption that the CPB would transfer its employees between the sites and possibly in the application of various agreements. The Commission found that, in a commercial context, there would be a time when the actual activity to be carried out for a commercial reward would begin and the business would be created at that time.  As far as the joint venture is concerned, this point has been reached and construction has begun “well and really”.  For more advice on business negotiations, please contact an AMMA advisor near you.