Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) [2022] FCAFC 55

Federal Court of Australia

Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) [2022] FCAFC 55 File number: NSD 172 of 2021

Judgment of: BROMBERG, WHEELAHAN AND SNADEN JJ

Date of judgment: 7 April 2022

Catchwords: INDUSTRIAL LAW – enterprise agreements – greenfields agreements – Fair Work Commission approved greenfields agreement between respondents and Transport Workers' Union – rival union appealed approval decision – Fair Work Commission Full Bench upheld approval – application for review of both Fair Work Commission decisions – whether Fair Work Commission had jurisdiction to approve proposed greenfields agreement – meaning of "genuine new enterprise" – whether respondents' business "genuine new enterprise" – respondents' enterprise not a "genuine new" enterprise – Fair Work Commission therefore lacked jurisdiction to approve agreement – appropriateness of prerogative relief – relief granted

Legislation: Acts Interpretation Act 1901 (Cth) ss 15AA and 15AB Fair Work Act 2009 (Cth) pt 2-4, ss 12, 562, 570, 604, 618 Judiciary Act 1903 (Cth), s 39B Passenger Transport Act 2014 (NSW) s 36, 39 Transport Administration Act 1988 (NSW) ss 3C, 3E

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory (2009) 239 CLR 27 Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FCAFC 188 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 Grey v Health Insurance Commission [2001] FCA 1398 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union (2001) 109 FCR 303 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527 Patrick Cargo Pty Ltd v Transport Workers' Union of Australia (2002) 115 IR 443 PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (2001) 106 FCR 302