[2018] FWCFB 3702
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
CPB Contractors Pty Ltd and The Australian Workers’ Union
(C2018/1102)

SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER HARPER-GREENWELL

SYDNEY, 22 JUNE 2018

Appeal against decision [[2018] FWCA 1187] of Commissioner McKinnon at Melbourne on 23 February 2018 in matter number AG2017/5735 – greenfields agreement – whether enterprise is a genuine new enterprise that employer is establishing or proposing to establish – jurisdictional fact – evidence did not support a finding that jurisdictional fact in s.172(1)(b)(i) had been established – appeal upheld – decision to approve the Agreement quashed – application dismissed.

Introduction

[1] On 10 November 2017, CPB Contractors Pty Ltd (CPB) and the Australian Workers’ Union (AWU) purported, pursuant to s.182(3) of the Fair Work Act 2009 (Act), to make a single-enterprise agreement titled the CPB Contractors (Victoria) Civil Framework Agreement 2017 (Agreement) that is said to be a greenfields agreement as described in ss.172(2) and (4) of the Act. In accordance with s.185 of the Act, on 23 November 2017, CPB applied to the Fair Work Commission (Commission) for approval of the Agreement. On 23 February 2018, Commissioner McKinnon approved the Agreement and published a decision 1 (Decision) setting out the reasons for approving the Agreement.

[2] By its Notice of Appeal lodged on 1 March 2018, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applies for permission to appeal and seeks to appeal the Decision.

Appeal grounds

[3] The Notice of Appeal raises nine (9) appeal grounds which we need not reproduce. It is sufficient to group and summarise the grounds of appeal as follows.

[4] Grounds 1 to 4 cavil with the Commissioner’s conclusion that the Agreement relates to a “genuine new enterprise” that CPB was establishing or proposing to establish at the time the Agreement was made. Grounds 5 and 6 assert that the Commissioner erred in concluding that CPB “[had] not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the [A]greement”. Grounds 7 to 9 assert that the Commissioner erred in being satisfied that the employees covered by the Agreement were fairly chosen and a related matter as to the certainty of the scope of the Agreement having regard to the terms of s.58 of the Act.

Consideration

Standing to appeal

[5] Although the CFMMEU accepted that it did not have a right to be heard in relation to the application to approve the Agreement, the Commissioner nonetheless determined to hear from the CFMMEU on the question whether the Agreement relates to a “genuine new enterprise” that CPB is establishing or proposes to establish. The standing of the CFMMEU to bring the appeal was not contested. We consider that it has an interest in the Decision beyond that of an ordinary member of the public and is consequently a person aggrieved by the Decision. It therefore has standing to appeal against the Decision pursuant to s.604 of the Act. The rules of the CFMMEU permitted it to enrol as members relevant employees who will be covered by the Agreement and thus to represent their industrial interests. Furthermore, its broader interest in the question whether the Agreement relates to a “genuine new enterprise” that CPB is establishing or proposes to establish, caused it to make submissions concerning this question in the proceedings before the Commissioner which were rejected. Those circumstances are sufficient to confer standing to appeal on the CFMMEU. 2

Permission to appeal

[6] We consider that permission to appeal should be granted. For the reasons which follow, the Decision is attended by sufficient doubt to warrant its reconsideration on an issue which affected the Commission’s power to approve the Agreement.

The appeal

[7] In dealing with an appeal of a decision determining the existence of a jurisdictional fact, a Full Bench of the Commission is concerned with whether the Member at first instance reached the correct conclusion. It is not concerned simply with whether the decision was reasonably open. 3 A Tribunal cannot give itself jurisdiction by erroneously deciding that a jurisdictional fact exists.4 For the reasons that follow, we have found it necessary only to deal with the grounds of appeal that challenge the Commissioner’s conclusion that the Agreement related to a “genuine new enterprise”. We have decided to uphold the appeal on the basis that the Agreement does not relate to a genuine new enterprise that CPB was establishing or proposing to establish when it made the Agreement with the AWU. It is unnecessary to consider the other grounds because, as the Commissioner noted in the Decision, whether the Agreement relates to a genuine new enterprise that CPB is establishing or proposes to establish is a jurisdictional fact, which is to be established on the balance of probabilities. If that jurisdictional fact is not established, the Agreement is not one which engages the Commission’s jurisdiction to approve an enterprise agreement that purports to be a greenfields agreement under the Act.

[8] On that basis, it is appropriate that the Decision be quashed and on a rehearing, we have concluded that the Agreement does not relate to a genuine new enterprise that CPB is establishing or proposes to establish. The application to approve the Agreement should be dismissed.

[9] An alternative way of looking at the matter is that even if the question whether the Agreement relates relevantly to a genuine new enterprise is not a jurisdictional fact, so that it was sufficient for the Commission’s agreement approval jurisdiction to be enlivened by the mere making of an application for approval of the Agreement under s.185, the Agreement could not meet the approval requirements in s.186(2)(a) and s.188 because it was not a greenfields agreement and had not been genuinely agreed. However, since neither party argued this point, it need not be taken further.

Relevant factual background and some observations

[10] Accompanying the application for the approval of the Agreement was a statutory declaration completed by Mr David van den Berg, CPB’s Manager of Industrial Relations. Question 1.4 of the statutory declaration asks a question concerning the details of the genuine new enterprise that the employer is establishing or proposing to establish. The question and the response given in the statutory declaration are set out below:

“1.4 Does the agreement cover a genuine new enterprise the employer is establishing or is proposing to establish?

[11] Question 1.5 of the statutory declaration enquires whether the employer has an existing similar enterprise. The question and the response given in the statutory declaration are set out below:

“1.5 Does the employer have existing similar enterprises or is the employer contemplating the establishment of a similar enterprise?

[12] During the hearing before the Commissioner, the information provided by Mr van den Berg in the statutory declaration was supplemented by a witness statement 5 and some oral evidence.6 Relevantly, Mr van den Berg’s evidence about the nature of the genuine new enterprise was as follows below. We make some observations about that evidence where appropriate.

[13] Prior to 2015, Leighton Contractors Pty Limited (Leighton) and Thiess Pty Ltd (Thiess) were wholly-owned subsidiaries of Leighton Holdings Pty Ltd. 7 Leighton and Thiess each consisted of construction, mining and services divisions.8 In 2015, the construction divisions of Leighton and Thiess merged, “forming CPB”, with all Thiess employees “transferred across” to Leighton Contractors between January and October 2015 and with the name of the company (Leighton Contractors Pty Limited) being changed to CPB Contractors Pty Ltd as at 1 January 2016.9 Mr van den Berg said that CPB has the same ABN as Leighton but represents the two merged construction businesses.10 Mr van den Berg also appears to have suggested in his oral evidence before the Commissioner, that although CPB has the same ABN as Leighton, CPB was a different entity to Leighton because CPB is “the successor to Leighton Contractors”.11

[14] CPB as a legal entity is nothing more than Leighton renamed. It is accepted by CPB that the formerly named Leighton Contractors Pty Limited is the same legal entity as the currently named CPB Contractors Pty Ltd. 12 Moreover, CPB was not a successor to the civil construction business operated by Leighton since before and after the “merger” and before and after the name change, the legal entity now called CPB operated that business. This is relevant because it informs the question whether the “enterprise”, as characterised by CPB (or as described by the Commissioner) is “a genuine new” enterprise that CPB is establishing or proposes to establish.

[15] Similarly, the suggestion in Mr van den Berg’s evidence that the merger of the construction divisions of Leighton and Thiess “formed CPB” 13 is also not accurate. It may be that the merger of the divisions prompted a subsequent name change to an existing legal entity (from Leighton to CPB) but the legal entity was formed well before the merger of divisions and continued to exist after that merger, and after the change in name.

[16] Mr van den Berg’s evidence was that following the merger, the building and construction and civil construction work previously performed by Thiess and Leighton are now performed by CPB. This includes the water work component of civil construction. 14 Again, it seems to us that it would be more accurate to say that the civil construction work (outside the water industry) undertaken by Leighton Contractors Pty Limited prior to the “merger” (which appears to have begun to take place in January 2015) continued after the merger to be undertaken by Leighton Contractors Pty Limited throughout 2015 and from January 2016, continued to be undertaken by that same legal entity now named CPB Contractors Pty Ltd.

[17] CPB has a new industrial relations and employment strategy, which reflects the new direction of CPB following the “merger”. 15 It is moving towards a model of establishing and maintaining a core workforce of employees that it will transfer from project to project as required. The total numbers of employees will depend on the number of water and general projects won by CPB, but is likely to be in the range of 100 to 200 employees at any given time. This amounts to between $12 million and $24 million in payroll costs annually.16

[18] The decision to move to a model of establishing and maintaining a core workforce of employees was made because it provides CPB with the opportunity to train these employees in CPB’s method of operating, including in relation to safety, and to ensure greater productivity, continuity and consistency in performance. CPB also wants to provide longer-term employment to its employees. 17 The new model of operation is said also to provide CPB with greater financial control over its labour force18 and is said to be in contrast to the previous operation and method of engaging labour to perform works.19 This evidence should be assessed with the evidence given during cross-examination which we extract later in this decision.

[19] At the time the Agreement was made, that is, 10 November 2017, CPB was engaging in award-covered civil construction work in Victoria (CityLink project), which work was being undertaken by employees of CPB. Mr van den Berg’s evidence about this was that it was the only civil construction project on which CPB employs employees, of which there are seven (7), but this project is covered by a project-specific agreement, the CityLink Tulla Widening Bulla Road to Power Street Greenfields Agreement 2015. 20 That agreement was approved on 29 January 2016.

[20] The coverage of the Agreement said to have been made in relation to the genuine new enterprise does not extend to an employee of CPB to whom a project enterprise agreement approved by the Commission applies while performing work on that project. 21 There was some debate before the Commissioner about whether CPB employees on the CityLink project fell within the exclusion under the Agreement. Before us, CPB sought permission to adduce further evidence related to this issue. We do not propose to allow the admission of the further evidence. It is not necessary for the purposes of our decision and we are prepared to accept that these employees fall within the exclusion.

[21] Mr van den Berg’s evidence was that by 22 December 2017, there would be no employees employed by CPB on that project. 22

[22] At the time that the application for the approval of the Agreement was heard by the Commissioner, CPB did not employ any wages employees on any other civil construction projects in Victoria. Other civil construction projects were being undertaken by CPB, but the work associated with those projects was undertaken by contractors engaged by CPB and/or by labour hire arrangements. 23 We understand that the term “wages employees” is intended to describe award-covered employees. Examples of the projects involving civil construction and/or water industry works undertaken by CPB, but where the work is being carried out by contractors and/or labour hire workers include the following:

•  The Caulfield to Dandenong Level Crossing Removal Project;

•  The Western Treatment Plant project, which is a $122 million upgrade on behalf of Melbourne Water in partnership with UGL Limited;

•  The Craigieburn Sewerage Transfer Hub project, on which the only CPB employees who are employed are salaried management and supervisors; and

•  The Ravenswood Intersection project in Bendigo. 24

[23] CPB, when still called “Leighton”, undertook civil construction works in Victoria and had its employees performing some of that work. 25 An enterprise agreement titled the Leighton Contractors Pty Ltd Civil and Rail Industry Enterprise Agreement (Victoria) 2012-201526 applied to the employees performing that work.27 That agreement is a Victoria-wide enterprise agreement in its application. It was not made as a greenfields agreement. It is still in operation (though it has passed its nominal expiry date) and it covers CPB. The CFMMEU is also covered by that agreement. Mr van den Berg described this agreement as a “legacy” agreement which is still operative notwithstanding that it has passed its nominal expiry date.28 Presumably by this he intended to convey that the agreement was made before the merger, and that at the time that he made the statement, no CPB employees were engaged in work under the agreement nor were covered by it. CPB has not employed any employee under that agreement since the merger between the construction divisions of Leighton and Thiess in 2015.29 The last employee to be employed under that agreement ceased employment on 2 May 2016.30

[24] Prior to the merger, Thiess undertook water industry work as part of its civil construction operations, but only through the use of contractors and/or labour hire to perform the work. 31 CPB, as “Leighton”, had not undertaken any ongoing pipeline or civil works in the water industry.32

[25] As a consequence of the work undertaken by Thiess in the water industry, CPB is increasingly winning water projects within the Melbourne Water Capital Framework. 33 In 2017, CPB won and performed 31 capital projects with Melbourne Water with a value of more than $137 million.34

[26] Mr van den Berg’s evidence was that CPB will significantly change its method of performing this work, being water industry work, by moving from a contractor model only (the model used by Thiess) to direct employment of employees of CPB to perform this work and that once employed these employees will be covered by the Agreement. 35

[27] Mr van den Berg also gave the following evidence during cross-examination:

“Can I just move to the next subject matter. Do you say in relation to what I might describe as “the future”, that CPB has - sorry, I’ll take it back one step, I’m sorry. In your statement you refer to at paragraph 11 to a new industrial relations and employment strategy?  -Mm-hm.

I don’t think you need to turn to it but if you do I’ll read it to you:

CPB has a new industrial relations and employment strategy which reflects the new direction of CPB following the merger of Leighton and Thiess.

Well the new direction following the merger only happened recently, didn’t it? Because the merger was back in 2015?  -Well, at the time of the merger we had ongoing projects from the Thiess business and the Leighton’s business. You can actually see the terms of the heritage Thiess business we still had applicable agreements operating on the regional rail project where we had an enterprise agreement with Balfour Beattie for that particular project. We also had the Dingley bypass project where we had a project specific agreement which didn’t actually expire until, from memory, March last year. So it expired substantially after the expired Leighton’s civil and rail agreement. Our proposition’s always been that for our business to move forward Thiess predominantly had project specific agreement, and Leighton’s had a single statewide civil agreement. It doesn’t actually suit the nature of our work going forward in that we would prefer for projects below $1 billion to have a single agreement, so that we can actually engage employees, train them up, move them across a number of water and smaller civil projects, so that we get that continuity and control over our work. For those larger projects in excess of $1 billion, that we enter into projects specific agreement. To that end, we spent a number of months trying to negotiate an agreement for the CTD project. We did actually successfully negotiate on for the CTW project, City Tulla Widening, and we also tried to negotiate one for the FMBH grade separation project unsuccessfully as well. So that’s been the model that we have decided to adopt. It took some time after the merging of the two businesses and the running out of those existing projects for us to be able to better understand what it was that we wanted to do with the business moving forward. So it actually took quite an amount of time to actually arrive at that new strategy.

Could you answer my question now please?  -Sorry, I thought I had.

My question was that since the merger in 2015 to today, nothing has changed, correct?  -No, that’s not true at all.

What you talk about in your statement is that the new strategy is something that is to be implemented going forward, correct?  -The new strategy is to be effected going forward, that’s correct.

The new strategy as I understand your statement, involves a new method of retaining labour, correct?  -Correct.

Of course, it would be the case that if CPB saw it at any time in the future as being more commercially advantageous to either contract labour or to make use of labour hire, it would depending on the circumstances, do so, correct?  -It certainly could.

If it was commercially advantageous, it would do that, correct?  -Yes, but commercial advantageous doesn’t always necessarily relate to price, which is where I think you’re coming from.

I didn’t mention the word price; I simply said commercially advantageous?  -Okay.

I left it broader than price?  -I’d agree with that general statement.

Thank you. In the past indeed, rightly or wrongly, people who made decisions about using contract labour as against direct employees did so because they made an assessment of the commercial advantageousness, if that’s a word of choosing one option over the other, correct?  -Yes.

What we see from the past in respect of CPB, and when I say CPB, I am not meaning to be pejorative, you’re late on the scene in terms of CPB. I’m talking about Leighton because it was only a name change before it became CPB, and CPB, when we look at its past, what it’s done from time to time has entered into enterprise agreements or certified agreements before that for its own workforce and employed them directly whether by greenfields agreements or otherwise. On the one hand, correct?  -On the former Leightons business, as I understand it, only generally entered into state agreements not project agreements.

Right, look whether they be state - when you say state agreements, what do you mean by that?  -It’s a broad agreement that covers all work within a particular sector throughout the state of Victoria. So, if you look at the - - -

It’s a state-wide agreement?  -There’s an expired building construction agreement that applies to all building construction work in Victoria and the expired Civil Rail Agreement applied to that scope of work across the whole of the state of Victoria.

Then from time to time there were project agreements?  -Well, it was actually - I don’t believe there were actually that many project agreements.

You’ve seen the annexure to Mr Edwards’ statement, where he lists off, I think 90 or them?  -But they’re a raft of agreements that applied to Leightons nationally, including their mining business which is now part of Thiess.

But 90 of them didn’t relate to their mining business?  -No.

And 90 of them, some of which included projects and so forth in Victoria?  -I’m referring specifically, in terms of the model that was applied in Victoria, not the rest of the country where it was quite different at times.

But nonetheless, you agree with the proposition that from time to time decisions were made as to prefer contract labour over direct employment or vice a verse, within the business of CPB. By that I mean, Leighton, correct?  -Well, that applied equally to Leightons, Thiess and CPB.

Nothing will change about that in the future, correct?  -No, I wouldn’t say that’s the case. The difference we’ve had in the past, the immediate past, is that we actually haven’t been able to negotiate agreements for some of the smaller scopes of work that we perform, so we’ve had no choice but to use subcontractors and labour hire. This agreement gives us the scope to actually start to employ employees and start to self-perform again.

You have the scope to employ employees in civil construction work under the civil and rail agreement, correct?  -We have no intention of employing people under an expired agreement, thereby leaving ourselves open to possible protected industrial action.

Is that the real reason why you want this agreement in place?  -No. If we wanted this agreement in place to replace that former Leightons agreement, we wouldn’t have had a $1 billion cap on it, it would apply to all of our works. The position of CPB Contractors is that we have made a conscious decision that works below $1 billion are a smaller scale and we can better employ a direct workforce and actually move them across those projects as required. It doesn’t mean that someone’s employed on one project and they stay there till the conclusion of that project and then move onto another. There’ll be specialist employees such as pipe layers and plant operators that may very well have a period of time on a specific project, complete their works and then move off to another project and do similar works on that other project. It gives us the ability to be flexible in terms of moving and redeploying our workforce around our business in smaller projects.

The existing civil and rail agreement would give you capacity to employ people directly under the terms of that agreement, correct?  -Like I said before, we do not want to actually engage people under an expired agreement and leave ourselves open to protected industrial action.

That agreement applies to the same business, or would apply if you employed people under it, to the same business that the greenfields agreement that we’re talking about in this case would apply, correct?  -It applies to an organisation that has the same ABN number and is the successor company to Leighton Contractors. We do not believe though, to all intents and purposes that the current business is the same as the former Leighton Contractors. It actually has much more of the hallmarks of the former Thiess Construction business in Victoria.

It is the same civil construction works and water industry capital works business, isn’t it?  -No, it’s not. Because before the merger of the two entities, all the water industry work was conducted by Thiess. It was not conducted by Leighton Contractors.

The business that existed upon the merger and the business that exists today is a civil construction works and water industry capital works business?  -It is today, yes.

And it was when they merged in 2015?  -When they merged they did a substantially greater amount of building construction as well.” 36

[28] A number of observations may be made about this evidence. First, each of Thiess, the formerly-named Leighton and now CPB has a history from time to time of making decisions to prefer contract labour over direct employment and vice versa. Secondly, in the immediate past, CPB has tried to negotiate for some smaller scopes of work that it performs but was unable to do so and so “had no choice” but to use subcontractors and labour hire. Thirdly, the change in operating method which led to the making of the purported greenfields agreement gave CPB scope to “start to self-perform again”. Fourthly, it is clear that the work on projects undertaken by CPB will not be exclusively performed by its workforce. This is because the employees that CPB proposes to engage will “be specialist employees such as pipe layers and plant operators that may very well have a period of time on a specified project, complete their works and then move off to another project and do similar works on that project”. All of this tells against a conclusion that the enterprise as characterised was genuinely new.

[29] The Commissioner set out some of this evidence at [10] of the Decision.

Relevant statutory provisions

[30] Section 172 of the Act provides, inter alia, for the making of enterprise agreements that are greenfields agreements. These may be made on a single-enterprise or multi-enterprise basis. A single-enterprise agreement that is a greenfields agreement is one that meets the description in s.172(2)(b). 37 That sub-section provides:

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

(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.

[31] Section 172(4) describes that which is a greenfield agreement as follows:

“(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.”

[32] Section 172(5) describes the circumstances in which two or more employers are single interest employers for the purposes of making an enterprise agreement as follows:

“(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.”

[33] Section 12 ascribes a meaning to the word “enterprise”, that is, “a business, activity, project or undertaking”.

[34] Section 182(3) provides that a greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

The Decision

[35] After dealing with some preliminary matters, setting out some of the relevant statutory provisions and identifying the issues that were in dispute, 38 the Commissioner commenced her consideration of whether the Agreement relates to a genuine new enterprise that CPB is establishing or proposes to establish. As earlier noted, at [10] of the Decision, the Commissioner set out some of the factual matters upon which CPB relies to establish that the Agreement relates to a genuine new enterprise that CPB is establishing or proposes to establish.

[36] At [11] the Commissioner noted that CPB had initially described the genuine new enterprise it was establishing or proposing to establish as “civil construction works and water industry capital works in the State of Victoria” but that in a later submission, CPB characterised the new enterprise “as either:

[37] As to the first of the characterisations advanced by CPB and encapsulated by the dot points above, the Commissioner in our view properly rejected that proposition by concluding at [21] and [22] of the Decision, that even if the “merged” entity (as the Commissioner described it) that commenced to undertake civil construction and water works on or after 1 January 2016 may have been a genuine new enterprise for CPB at that time, it appeared now to be an established enterprise and so was not one that CPB was establishing or proposing to establish when the Agreement was made.

[38] As to the second of the characterisations, the Commissioner set out her understanding of the evidence at [12] of the Decision as follows:

“[12] As I understand CPB’s evidence, this new workforce will be established on an ongoing basis so that employees can be deployed as required on civil construction work across Victoria. By taking on the role and responsibility of employer for this category of work, CPB is rebuilding its own internal capability for a range of business reasons related to safety, productivity and performance. One consequence will be that the use of contractors will be significantly reduced. There is no acquisition or transfer of business involved.” 39

[39] At [13]-[15] and [20] of the Decision, the Commissioner summarised the CFMMEU’s submissions and some of the evidence on which it relied to support its contention that the Agreement did not relate to a genuine new enterprise that CPB was establishing or proposing to establish. In doing so, the Commissioner rejected an argument advanced by the CFMMEU that the Act places primacy on bargaining with employees, that greenfields agreements are exceptional and that applications for the approval of such agreements should be approached with a high degree of care, caution and scrutiny. The Commissioner concluded that the Act recognises both employee bargaining and bargaining for greenfields agreements and does not prefer one form of bargaining over the other. In support of her conclusion, the Commissioner made reference to the judgement of Buchanan J in CFMEU v John Holland Pty Ltd, 40 wherein his Honour said by reference to bargaining for greenfields agreements and concerns raised by the Full Bench of the Commission in relation to bargaining with a small number of employees for an agreement with much wider application, that the Act “recognises each form of bargaining. It does not prefer one over the other.”41

[40] The Commissioner discusses the meaning of “enterprise” in the Decision as follows:

“[16] ‘Enterprise’ is defined broadly in the Act. An employer can have more than one enterprise, as can an ‘enterprise’ as defined. For example, a business can have more than one project; a project may involve many different activities; and an undertaking might require more than one business.

[41] The Commissioner next describes the character of the particular enterprise to which the Agreement relates and concludes that the enterprise so characterised was a genuine new enterprise that CPB was proposing to establish when the Agreement was made and the Agreement so relates. The Commissioner reasoned as follows:

“[22] I agree with the CFMEU that it is difficult to see how an enterprise so broadly described as “civil construction works and water industry capital works in the State of Victoria” could be considered a genuine new enterprise for CPB, having regard to CPB’s own evidence that it has a number of current civil construction and water industry projects, including in Victoria. In my view, the description describes CPB’s business generally rather than the character of the particular enterprise to which the Agreement relates.

[23] That enterprise can best be described as general Award-covered civil construction and water industry works in Victoria. The evidence establishes that when the Agreement was made, this was a new activity or undertaking that CPB proposed to establish by employing a new permanent workforce in Victoria. Until that time, such work was contracted out to third parties and not performed by CPB at all. The one exception, relating to the CityLink Project, was being demobilised and nearing completion.

Genuine new enterprise

[42] We turn now to consider the grounds of appeal (Grounds 1-4), directed to the Commissioner’s conclusion that the Agreement relates to a genuine new enterprise that CPB was proposing to establish when the Agreement was made. In furtherance of these grounds, the CFMMEU contends in summary that:

•  a cautious approach should be adopted by the Commission to finding the jurisdictional facts (in s.172(2)(b)), since greenfields agreements should be seen as exceptional and that the Commissioner wrongly rejected this approach;

•  having regard to the legislative history of the provisions relating to greenfields agreements, the word “activity” in the definition of “enterprise” simply captures things done by public bodies and bodies established for public purposes, as distinct from things done by other employers (like CPB). It does not apply to the things that they do in some broader way than that which is conveyed by the words “business”, “project” or “undertaking” – or indeed in any way at all. Support for this construction is said by the CFMMEU to be found in the Explanatory Memorandum to the Fair Work Bill 2008, which relevantly provides:

“31. The definition makes it clear that an enterprise includes an activity. This is intended to ensure that an enterprise includes activities carried out by not-for-profit organisations and government authorities. For example, an employer that is government authority, such as the Commonwealth, or a State or Territory, may make a greenfields agreement in relation to a genuine new activity that it proposes to undertake (see clause 172)”;  44

•  similarly, the words “project” and “undertaking” in the definition of “enterprise” are to be interpreted in effect, as an aspect, subdivision, or particular manifestation of a “business”. It is suggested that the word “undertaking” does not appear to be meaningfully different from “project”;

•  in identifying the relevant “enterprise” in respect of which the question must be answered whether it is “genuine[ly] new”, the word “activity” in the definition of “enterprise” can be put to the side, as CPB is not a public body and was not established for public purposes. The words “project” and “undertaking” can also be put to the side, as a “project” or an “undertaking” is an aspect, subdivision, or particular manifestation of a “business”. The Agreement is not a project-specific agreement. Rather, it covers a core workforce that CPB will transfer from project to project, the size of which will vary based on the number of projects won by CPB. The work to be performed under the Agreement and work performed pursuant to project-specific agreements are distinguished. 45 The same distinction is made in CPB’s submissions before the Commissioner. It distinguished work to be performed under the Agreement from “project-specific roles”,46 or on a “discrete project basis”.47 On both CPB’s evidence and its submissions, the Agreement does not relate to a particular “project” or “undertaking”;

•  once the Commissioner had concluded that “undertaking civil construction and water works… may have been a genuine new enterprise for CPB at [1 January 2016, but]… it would now appear to be an established enterprise”, that was, properly, the end of the analysis. However, the Commissioner went on to deal with attempts by CPB to distance itself from its own statutory declaration and evidence, and in so doing fell into error. CPB’s attempts in its submissions to define its “new enterprise” were plagued by definitional inexactness, and the dispositive paragraphs of the Commissioners reasoning at [22]-[23] of the Decision show the same signs of internal inconsistency. For example:

•  as the Agreement does not relate to an “activity,” or a “project” or “undertaking”, it necessarily must relate to a “business”. That “civil construction works and water industry capital works in the State of Victoria” is a description of CPB’s “business” is not a reason for rejecting that description. On the contrary, it is the reason for adopting it as the appropriate description;

•  at [23] of the Decision, the Commissioner concluded that “general Award-covered civil construction and water industry works in Victoria” was a “new activity or undertaking”. But it cannot have been an “activity”, because CPB is not a public body and was not established for public purposes. It cannot have been an “undertaking”, because it was uncontroversial that the Agreement was not a project agreement;

•  CPB’s confused approach led the Commissioner into error. There was no basis for concluding that, if the words “Award-covered” are added to that description, a new enterprise is described. This is because:

•  it is the same enterprise, only CPB chooses now to “retain labour” in a way that it characterises as “different”. 52 In reality, it is not even a “different” labour-retention model because, as apparent from Mr van den Berg’s evidence, CPB already from time to time had used contract labour over direct employment, and vice versa;53

•  even on the Commissioner’s characterisation of CPB’s enterprise as being “general Award-covered civil construction and water industry works in Victoria”, the fact that as at the date the Agreement was made, seven employees were employed by CPB on the CityLink Tulla Widening Project, 54 should have compelled the Commissioner to conclude that that enterprise was not “new”. The employees were covered by an award and the project was civil construction in Victoria;

•  at [38]-[47] of the Decision, the Commissioner considered whether the employees were necessary for the normal conduct of the new enterprise and would be covered by the Agreement. That is a relevant issue (for s.172(2)(b)(ii)). However, it is not the only relevant issue. Another issue is whether, in the light of that employment, it could be said that the enterprise was genuinely new, within the meaning of s.172(2)(b)(i). It cannot. All that the Commissioner said about the issue was that the employees and project were “exceptional” (at [23]). There is no principle of “exceptions” to the requirement that the enterprise be genuinely new. As appears from [23] of the Decision, at the date the Agreement was made, the project had been neither demobilised nor completed.

[43] In summary, CPB contends that:

•  the fact that CPB already operates a “business” variously performing civil construction and water industry works does not rob the enterprise the subject of the Agreement of the characteristic of being “genuinely new”. This is because:

•  the CFMMEU misunderstands the Commissioner’s characterisation of the genuine new enterprise. The Commissioner did not simply conclude that the genuine new enterprise was “general Award-covered civil construction and water industry works in Victoria”. That conclusion must be read in light of the remainder of [22] of the Decision, and the Decision as a whole. That which emerges from [22], read in the context of the Decision as a whole, is a finding that CPB’s genuine new enterprise was a new activity or undertaking comprising:

•  once that characterisation is properly understood, it cannot be said that the Commissioner’s decision that the Agreement related to a genuine new enterprise was irrational or illogical. The Commissioner concluded that the enterprise which commenced civil construction and water works on or after 1 January 2016 was not “the particular enterprise to which the agreement relates”. There were two different enterprises. It was thus perfectly rational and logical – and indeed consistent with the evidence – to conclude that the Agreement related to a genuine new enterprise;

•  a new workforce is capable of amounting to a genuine new enterprise. A genuine new enterprise may take the form of a genuine new business, project, activity, or undertaking. The new workforce was (at a minimum) capable of amounting to a genuine new business, genuine new project, or, as the Commissioner found, a genuine new undertaking. Whether or not the legislative history evinces an intention to confine the term “activity” to activities of public sector employers, as the CFMMEU contends, is of no moment in this appeal. CPB did not need to rely (and did not solely rely below) upon the “activity” limb in order to make good its case. Rather, it relied upon the ordinary meanings of the words “business”, “project”, and “undertaking” – each of which is capable of grounding CPB’s genuine new enterprise;

•  the use of the word “project” in s.12 of the Act is not confined to the manner in which that term is understood within the construction industry. The ordinary meaning of the noun “project” is “something that is contemplated, devised, or planned; a plan; a scheme; an undertaking”. In this way, the noun “project” encompasses not merely the output of a particular endeavour, but the manner in which that output is achieved;

•  whilst the word “undertaking” may have a similar meaning to that of “project”, the concepts should not be treated synonymously. The word “undertaking” has two ordinary meanings: “the act of someone who undertakes any task or responsibility”, and “a task, enterprise, etc., undertaken”. It encompasses the manner in which a particular productive output is achieved;

•  thus, even if CPB is “in the business” of civil construction and water industry works only, it is plainly able to establish any number of different projects or undertakings, each of which may be the subject of a greenfields agreement (provided the remaining pre-approval criteria are satisfied). The Commissioner expressly characterised, at [22] of the Decision, CPB’s genuine new enterprise as being an “undertaking”;

•  the enterprise that CPB is proposing to establish and to which the Agreement relates is not merely a new method of engaging labour. It is far more than those things. It would create a new and discrete directly-employed workforce (of some 100 to 200 employees), to perform a discrete subset of civil construction and water industry works in Victoria. It would service smaller projects compared to those serviced by discrete workforces engaged under site-based agreements. It would service a markedly different mix of work (and thus a different client base), with a far greater concentration of water industry work. CPB has not previously established an enterprise on that footing. It does not propose to do so by acquiring a going concern. The enterprise would be genuinely new. That it is in the nature of civil construction and water industry work does not derogate from that fact;

•  as to the seven employees covered by the CityLink project agreement at the time the Agreement was made:

[44] Part 2-4 of the Act deals, inter alia, with the making and approval of enterprise agreements. As should be clear from that Part, an enterprise agreement may be made either as a single-enterprise agreement or a multi-enterprise agreement. Section 172 of the Act provides for the circumstances in which an enterprise agreement may be made, and deals with both single-enterprise agreements and multi-enterprise agreements. As earlier noted, the Agreement the subject of this appeal is a single-enterprise agreement that purports to have been made as a greenfields agreement. The question whether an enterprise agreement is a greenfields agreement affects the operation of many provisions of Part 2-4 of the Act on that agreement, 55 and whether the single-enterprise agreement is a greenfields agreement depends upon the terms of s.172(2)(b).

[45] Where, as here in relation to the approval of the Agreement, jurisdiction depends upon particular facts or a particular state of affairs, those facts upon which the jurisdiction depends must be established on the balance of probabilities in light of all of the evidence in the proceeding. 56 The search is for the objective character and identity of the enterprise to which the Agreement will apply and its novelty in relation to the employer’s business.57 The degree of segmentation from its existing enterprise is an important consideration.58 Also relevant are any differences in operational methods, and the intended client base to be serviced by the new enterprise.59 Whilst in some cases the answer will be clear, in many cases it will be a question of fact and degree whether or not the enterprise created as a result of an insourcing, in this case of a workforce to perform some work previously undertaken by contractors (and their employees) and labour hire workers, is genuinely new.

[46] Before dealing with the gravamen of the CFMMEU’s complaint encapsulated by the “genuine new enterprise” grounds of appeal, we deal briefly with four matters. We begin with the meaning of “enterprise”. The Commissioner observed that enterprise is defined broadly in the Act, that an employer can have more than one enterprise, as can an “enterprise” as defined. For example, a business can have more than one project; a project may involve many different activities; and an undertaking might require more than one business. 60 The Commissioner rejected the CFMMEU’s contention that an enterprise with the same character as an enterprise that once existed before can never be a “genuine new enterprise” under the Act and said that the contention is too broadly expressed. The Commissioner reasoned that such a construction would prevent legitimate greenfields agreements being made in a range of scenarios involving cessation of trade and subsequent renewal, where no such intention is expressed in the Act.61

[47] In applying that analysis to the facts which informed the Commissioner’s description of the enterprise 62 the Commissioner concluded that the enterprise was “a new activity or undertaking that CPB proposed to establish by employing a new permanent workforce in Victoria”.63

[48] It is this chain of reasoning which has prompted the CFMMEU’s contentions directed to the meaning of “enterprise”. We reject the CFMMEU’s contention that the word “activity” in the definition of “enterprise” is confined in its operation to activities carried out by not-for-profit organisations and government authorities. Our reasons for rejecting the contention may be briefly stated. First, there is no indication on the face of the definition for such a conclusion. Nothing in the words of the definition suggests that “activity” cannot be something that a private sector for-profit employer cannot engage, in order that it constitutes an enterprise as defined.

[49] Secondly, there is nothing to be discerned from the use of the word “enterprise” throughout the Act and in particular in Part 2-4, which would suggest that one should read down the capacity of an employer to be establishing or proposing to establish a genuine new activity, to only employers in the public or not-for-profit sectors.

[50] Thirdly, although we accept that the Explanatory Memorandum to the Fair Work Bill 2008 provides that the inclusion of “activity” in the definition of “enterprise” is intended to ensure that an enterprise includes activities carried out by not-for-profit organisations and government authorities, the memorandum does not say that the inclusion of “activity” is limited only to the activities of these employers. Rather, it merely provides that the definition of enterprise will include the activities carried out by these employers.

[51] Fourthly, although the legislative history provides useful context, it is equally clear from that history that the word “activity” used in connection with agreement making once had a confined operation for which the CFMMEU now contends. The Industrial Relations Legislation Amendment Act 1992 (Cth) amended the Industrial Relations Act 1988 (Cth) by introducing the notion of a “single business” which was, by s.134B, defined as follows:

“(1) In this Division, unless the contrary intention appears:

‘single business’ means:

[52] Whilst it is clear that each of the words “business”, “project”, “undertaking” and “activities” is reflected in the current definition of “enterprise”, the limited scope of “activities” is not. That the current scheme of the Act has not expressly maintained the difference, which is starkly apparent in the provision above and the legislative history, tells against the narrow construction for which the CFMMEU contends. Had the Parliament intended such a narrow operation for “activity” in the definition of “enterprise”, it could have simply given effect to that intention by clear words in the Act.

[53] As to the second matter, we reject the CFMMEU’s contention that the word “undertaking” does not appear to be meaningfully different from “project”. Whilst the word “undertaking” may have a similar meaning to and sometime overlapping meaning with the word “project”, there is nothing in the text of the definition of “enterprise” and, more broadly, in the context of the use of the word “enterprise” in the Act which suggests that these concepts should be treated synonymously.

[54] The third matter concerns the CFMMEU’s contention that the Commission should adopt a cautious approach to finding the jurisdictional facts embodied in s.172(2)(b), since greenfields agreements should be seen as exceptional, and that this approach was wrongly rejected by the Commissioner at first instance. Support for this submission is said to be derived from observations made by Rares J in National Union of Workers, New South Wales v HP Distribution Pty Ltd, 64 the relevant passage in which the observation is made is reproduced below:

““Enterprise” was defined to mean “a business, activity, project or undertaking” (s 12). The general rule for making enterprise agreements in the Act is contained in s 172(2)(a). Ordinarily, therefore, enterprise agreements will be made between persons who are in an existing relationship of employer and employees. It is common ground that a greenfields agreement, as provided in s 172(2)(b), is the exception to that general rule. That is because such an enterprise agreement will be between an employer and one or more relevant employee organisations in respect of a new enterprise, in anticipation of and before a new enterprise will have any employees – i.e. the “green field”.” 65

[55] It should firstly be observed that the provision itself makes no reference to a general rule or an exception. We do not think that his Honour was suggesting the contrary. The reference to the general rule for enterprise agreements is simply a recognition that the most common form of enterprise agreement that will be made will be one between one or more employers and its employees. It is much more frequently the case there will be agreements in relation to an existing “enterprise” rather than a “genuine new enterprise”. This seems reflected in his Honour’s reference to greenfields agreements being an exception to the general rule, a point that becomes clear in his Honour’s explanation in the final sentence of the extracted paragraph. The Act itself recognises both bargaining in the context of an existing enterprise and bargaining in the context of a genuine new enterprise that an employer is establishing or proposes to establish. Provision is made for the approval of agreements the product of both kinds of bargaining, and whilst it is true that some different provisions regulate the bargaining, the making and the approval of these various forms of agreements, we consider it correct, as the Commissioner observed, that the Act does not express a preference for one form of bargaining over the other.

[56] That greenfields agreements may be an exception, in the sense that they are not as common as agreements made between one or more employers and their employees, does not mean that a cautious approach to the finding of the jurisdictional facts in s.172(2)(b) of the Act is warranted. As we have already made plain, and as the Commissioner herself observed, the jurisdictional facts must be established on the balance of probabilities. The evidence upon which an applicant relies will either establish the jurisdictional facts on the balance of probabilities or it will not. If it does not, the application for approval of a purported greenfields agreement will fail. There is no warrant for the introduction of a so-called “cautious approach” to the making of findings as to the requisite jurisdictional facts.

[57] The fourth matter with which we wish to deal concerns the CFMMEU’s criticisms of the Commissioner’s reasoning at [22]-[23] of the Decision and in particular, the Commissioner’s reference to CPB’s engagement in “civil construction works and water industry capital works in the State of Victoria” as describing CPB’s “business generally” rather than “the character of the particular enterprise”. It is well settled that reasons for a decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. 66 The Decision must be read as a whole and considered fairly, so that that which might be characterised as infelicitous expressions do not too readily give rise to the inference of error.67

[58] Reasons for a decision are thus not meant to be scrutinised upon over-zealous review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 68 Although these propositions relate to judicial review of administrative decisions, there is no reason why a different approach should be taken in an appeal under the Act.69

[59] Read in the context of the Commissioner’s reasons as a whole and, in particular, in the context of the totality of that which appears at [21]-[23], it seems plain to us that the Commissioner was conveying the proposition that “civil construction works and water industry capital works in the State of Victoria” was a description of CPB’s “enterprise generally” in Victoria, whilst the characterisation of “general Award-covered civil construction and water industry works in Victoria” was the “particular enterprise”, being the new activity or undertaking that CPB proposed to establish and to which the Agreement relates. It follows that we reject the CFMMEU’s submissions in this regard.

[60] We turn then to the gravamen of the CFMMEU’s complaint in this appeal, that the Agreement did not relate to a new enterprise that CPB is establishing or was proposing to establish. As we have already noted, the Commissioner characterised the “genuine new enterprise” that CPB was establishing or proposing to establish when the Agreement was made as “general Award-covered civil construction and water industry works in Victoria”. The Commissioner concluded that “this was a new activity or undertaking that CPB proposed to establish by employing a new permanent workforce in Victoria”. She concluded that “until that time, such work was contracted out to third parties and not performed by CPB at all”, and that the “one exception, relating to the CityLink Project, was being demobilised and nearing completion”.

[61] We would firstly observe that the characterisation of the genuine new enterprise was not a characterisation advanced by CPB. Secondly, the characterisation is apt to describe that which CPB has undertaken since the merger, and which it described in its statutory declaration as “civil construction works and water industry capital works in the State of Victoria”. Though that work was undertaken by contractors and labour hire workers, the employees of the contractors and the labour hire workers performing the work would invariably be award-covered. The description in our view takes the matter no further.

[62] But the description of the enterprise that was purportedly being established, and which CPB says should be read in conjunction with the Commissioner’s further description following the characterisation, is of little assistance, since it is, in our view, factually incorrect in two respects. First, as should be clear from the evidentiary material that we have earlier set out, CPB engaged in civil construction works in Victoria both before and after the “merger” in 2015 by directly employing employees to carry out that work. CPB entered into two agreements which applied to employees performing that work. The work performed under both agreements by directly-employed employees of CPB plainly falls within the description of general award covered civil construction and water industry works in Victoria. Moreover, as is evident from the evidence in the proceedings before the Commissioner, CPB remains covered by the Leighton Contractors Pty Ltd Civil and Rail Industry Enterprise Agreement (Victoria) 2012-2015. 70 That agreement applied to CPB employees performing that work before and after the merger. Such work is aptly described as falling within the “enterprise” characterised as award-covered civil construction and water industry works in Victoria. That agreement is a Victoria-wide enterprise agreement in its application. It was not made as a greenfields agreement, is still in operation (though its nominal expiry date has passed) and it covers CPB and the CFMMEU. The last employee to be employed under that agreement ceased employment on 2 May 2016, that is, after the merger. Secondly, as earlier noted, in the immediate past, CPB has tried to negotiate some smaller scopes of work (by making an agreement) that “it performs”, but was unable to do so and so “had no choice” but to use subcontractors and labour hire. This suggests an “existing”, not “new”, operating model of directly-employed labour.

[63] In addition, there is no evidence about the particulars of the industrial relations plan that was developed by CPB to which reference is made by Mr van den Berg. There is no evidence about precisely when the decision to move to a model of establishing and maintaining a core workforce of employees was made. There is also no evidence of any business plan or financial modelling that one might expect would be developed to support a new enterprise. Moreover, it appears to us from the evidence that it is not the case that CPB will cease to use contractors or labour hire workers to perform work on projects which would fall within the characterisation of the proposed new enterprise as that of general award-covered civil construction and water industry works in Victoria. This is clear from Mr van den Berg’s evidence during cross-examination, in which he accepted that CPB could at any time in the future make use of contractors or labour hire workers, depending on the circumstances, including perceived commercial advantage, and that choices between contract labour and direct employees to carry out work have been made in the past by CPB as well as by Thiess and the formerly-named Leighton. 71 This tells against the characterised enterprise being new and tells against the characterised enterprise being segmented from CPB’s existing enterprise in Victoria.

[64] Given this evidence, there is nothing in the material that was before the Commissioner which explains how such work would be different from the work that would be performed by the full-time permanent workforce, or how those activities for which CPB (on projects on which it will be principal contractor) would doubtless have responsibility, would be different to the activities that would be undertaken by employees in the purported new enterprise. There is no evidence about how the activity or undertaking said to comprise the genuine new enterprise is to be segmented from CPB’s existing enterprise, which the Commissioner accepted was in existence at the time that the Agreement was made, and characterised as civil construction works and water industry works in the State of Victoria. There is no evidence that there will be differing operational methods, save that some work will be performed by directly-employed persons, but in any event such work was at the time the Agreement was made, undertaken by directly-employed persons on the CityLink project.

[65] Assuming for a moment that the below-$1 billion project value said to be a characteristic of the proposed new enterprise is in fact a characteristic, it is clear from the evidence that CPB may nonetheless directly employ employees on projects valued at in excess of $1 billion, but the terms and conditions will be regulated by a project-specific enterprise agreement yet to be made. 72 There is no evidence about any differing operational methods that are to be used in respect of projects in excess of $1 billion and those valued at a lesser sum (save, perhaps, that it may be assumed that employees engaged on the former would be engaged on a specified project or task basis), or how the activities that are to be undertaken are to be segmented from one another.

[66] Evidence about these matters might well assist in discerning the objective character and identity of the proposed new enterprise, but in substance all that is left is that CPB engages inter alia in civil construction and waterworks in the State of Victoria, and it has done so previously through directly-employed labour as well as through the engagement of contractors and labour hire workers. It was, at the time the Agreement was made, engaging in such works at the CityLink project through directly-employed labour. It is also doubtless the case that throughout the project, it will have engaged contractors to also perform works on the CityLink project. It now proposes to engage a directly-employed workforce variable in number having regard to the number of projects that it has in progress or in planning. 73 That workforce will not be the sole business upon which work on further civil construction and water industry projects will be undertaken.

[67] It may well be the case that in so far as a directly-employed workforce engaged to perform work in the water industry might be said to be part of the proposed new enterprise, it may be genuinely new. That is, in the sense that CPB does not appear to have previously engaged in such activity or undertaking, and we express no concluded view about this. But it seems to us that the entirety or at least a substantial proportion of the one enterprise (in this case the activity or undertaking identified) that is proposed to be established must be genuinely new, not just some part of it that merely combines with that which already exists. Separately, the new part might have provided the foundation for a greenfields agreement, but that is not what CPB sought to do.

[68] In combination, we consider the evidence establishes that the enterprise, which involved the engagement of a permanent workforce, was one that existed at the time the Agreement was made, and CPB had employed persons in that enterprise as recently as May 2016. The work performed by the seven employees at the CityLink Project also fell within the described enterprise. That enterprise description is stated by the Commissioner at [22], [37], [38], [39], and [40]. The distinction sought to be made by CPB that the inherent characteristic of the enterprise was the engagement of a full-time permanent workforce, is, respectfully, not a distinction which we think, in the circumstances of this case, should be accepted as setting the seven employees apart from the fundamental character of the enterprise as described by the Commissioner. Counsel for CPB appearing in the appeal, properly in our view, accepted that the application provisions of the Agreement was not determinative of the character of the new enterprise that CPB was proposing to establish. 74 Thus at its highest, an essential component of the purported new enterprise was the engagement of a new permanent workforce.75 Counsel also, again properly in our view, accepted that there was no evidence of a separate management structure, different assets or anything else that separates the purported new enterprise from the enterprise in which CPB was already engaged in Victoria.76 Moreover, such a characterisation, confined as it is to a permanent workforce without more appears to us in the present case to be an insufficient basis on which to conclude that the enterprise is genuinely new. It is difficult to distinguish the engagement by CPB in the enterprise described as award-covered civil construction and water industry works in Victoria, from its “other enterprise” covering the same work but being performed by, for example, labour hire employees engaged by it.

[69] In its submissions both at first instance and on appeal, CPB contended that the purported genuine new enterprise that it was establishing at the time that the Agreement was made was consistent with that which was accepted as a genuinely new enterprise in John Holland Queensland Pty Limited 77 (John Holland Qld). The Decision is distinguishable. In John Holland Qld, the uncontested position was that the employer had not previously engaged directly-employed persons to perform work on its projects in Queensland and the Northern Territory. This is to be contrasted with the evidence about CPB’s directly-employed persons who previously performed work that fell within the described enterprise, that is, “general Award-covered civil construction and water industry works in Victoria”, the last of whom was employed under a state-wide enterprise agreement until May 2016. Moreover, there were seven employees employed at the time the Agreement was made in work caught by the characterisation of the enterprise, albeit that the particular project on which they worked was excluded from coverage by the Agreement. Further, as noted in John Holland Qld, the characterisation accepted in that decision may not always be available to a business that changes method of operation and “an important issue of degree must be considered”.78

[70] For these reasons, we do not consider that the evidence established on the balance of probabilities that the enterprise as characterised by the Commissioner was a “genuine new enterprise” that CPB was establishing or proposing to establish at the time that the Agreement was made. Accordingly, the Commissioner erred in concluding that this jurisdictional fact had been established. The enterprise as characterised was one in which CPB had previously engaged, and in which it was then engaging, at the CityLink Project. There is nothing new about the enterprise.

[71] It follows that the appeal should be upheld and the Decision quashed. On a rehearing, for the reasons given, we do not consider that CPB has established on the balance of probabilities that as at the date the Agreement was made, it was establishing or proposing to establish a genuine new enterprise. Therefore, as the jurisdictional fact in s.172(2)(b)(i) of the Act has not been made out, the application to approve the Agreement must be dismissed.

Orders

[72] We order as follows:

tle: seal - Description: Seal of the Fair Work Commission with Member's signature.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S Moore, QC with Mr J Hartley, Counsel for the Construction, Forestry, Maritime, Mining and Energy Union.

Mr A Pollock, Counsel for CPB Contractors and The Australian Workers’ Union.

Hearing details:

Melbourne.

2018.

April 18.

 1   [2018] FWCA 1187.

 2   See CEPU v Main People Pty Ltd [2014] FWCFB 8429 at [5]-[7]; MUA v Toll Energy Logistics Pty Ltd [2015] FWCFB 7272; (2015) 254 IR 353 at [95]-[98]; CFMEU v MGI Piling (NSW) Pty Ltd [2016] FWCFB 2654; (2016) 260 IR 244 at [4]; TWU v ALDI Foods Pty Limited [2016] FWCFB 91; (2016) 255 IR 248 at [22]-[23]; CFMEU v CSRP Pty Ltd [2017] FWCFB 2101 at [8]-[13]; and CFMEU v Concrete Constructions (WA) Pty Ltd [2017] FWCFB 3912 at [4].

 3   See, for example, Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and Anor (AIRC Full Bench) PR961315 at [51].

 4   See, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at [127]; R v Judges of the Federal Court of Australia. Ex parte WA National Football League (Inc) (1979) 143 CLR 190 at 214.

 5   AB148-AB153.

 6   AB68-AB81; PN25-PN141.

 7   AB148 at [6].

 8   AB148 at [7].

 9   According to the ASIC current and historical extract relating to CPB Contractors Pty Limited the actual date on which Leighton Contractors Pty Limited became CPB Contractors Pty Limited was 4 January 2016; see extract at AB165.

 10   AB148 at [8].

 11   AB79; PN121.

 12   Appeal Transcript PN465-PN468.

 13   See AB148 at [8].

 14   AB148 at [10].

 15   AB148 at [11].

 16   AB148 at [12].

 17   Ibid.

 18   AB149 at [13].

 19   AB149 at [14].

 20   AB149 at [15].

 21   AB19; Agreement clause 1.5.2 (a).

 22   AB149 at [17].

 23   AB149 at [18].

 24   AB150-AB151 at [30].

 25   AB149 at [19].

 26   AE895554.

 27   Ibid; see also AB299-AB379.

 28   AB149 at [19].

 29   AB149 at [20].

 30   Ibid.

 31   AB149 at [21].

 32   Ibid.

 33   AB149 at [22].

 34   Ibid.

 35   AB149 at [23].

 36   AB76-AB79; PN96-PN124.

 37   See s.172(4).

 38   [2018] FWCA 1187 at [1]-[8].

 39   Ibid at [12].

 40   [2015] FCAFC 16.

 41   Ibid at [79].

 42   [2018] FWCA 1187 at [16]-[19].

 43   Ibid at [22]-[24].

 44   Explanatory Memorandum to the Fair Work Bill 2008 p.6 at [31].

 45   AB150 at [27]. The same distinction appears at, e.g., AB149 at [16] and AB150 at [30].

 46   AB138 at [1].

 47   AB141-AB142 at [16].

 48   AB148 at [11].

 49   AB148 at [12].

 50   AB149 at [13].

 51   AB138 at [1] and [4], AB141 at [13] and AB142 at [18].

 52   AB77; PN103.

 53   AB78; PN116.

 54   [2018] FWCA 1187 [10(5)(a)].

 55   For example, ss.173, 174, 176, 180, 182(1) and (2) and 186(2)(a), among others, operate only in respect of an enterprise agreement that is not a greenfields agreement.

 56   National Union of Workers, New South Wales v HP Distribution Pty Ltd (2013) 231 IR 263 at [34] (Rares J).

 57   Ibid.

 58   John Holland Queensland Pty Limited [2014] FWC 783 at [12]-[13] (Richards SDP).

 59   See Re HP Distribution Proprietary Limited Greenfields Agreement 2011 (2012) 227 IR 24 at [18]-[23] (Drake SDP, McCarthy DP, Roberts C), approved in this respect in National Union of Workers, New South Wales v HP Distribution Pty Ltd (2013) 231 IR 263 at [33]-[37] (Rares J).

 60   [2018] FWCA 1187 at [16].

 61   Ibid at [19].

 62   Ibid at [23].

 63   Ibid.

 64   (2013) 231 IR 263.

 65   Ibid at [8].

 66   See, for example, Minister for Immigration and Ethnic Affairs v Wu and Ors (1996) 185 CLR 259 at 271-272.

 67   Ibid at 219.

 68   Ibid at 272.

 69   See, for example, Baxter Healthcare Pty Ltd v Portelli [2017] FWCFB 3891 at [65].

 70   AE895554.

 71   AB77-AB78; see PN103-109 and PN116.

 72   AB76; see PN99.

 73   AB148 at [12].

 74   Appeal Transcript PN366-PN375.

 75   Appeal Transcript PN376.

 76   Appeal Transcript PN400-PN401.

 77   [2014] FWC 783.

 78   Ibid at [13].

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