National Union of Workers, New South Wales v HP Distribution Pty Ltd [2013] FCA 139

FEDERAL COURT OF AUSTRALIA

National Union of Workers, New South Wales v HP Distribution Pty Ltd [2013] FCA 139 Citation: National Union of Workers, New South Wales v HP Distribution Pty Ltd [2013] FCA 139

Appeal from: National Union of Workers re HP Distribution Pty Ltd Greenfields Agreement 2011[2012] FWAFB 6302

Parties: NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH and NATIONAL UNION OF WORKERS v HP DISTRIBUTION PTY LIMITED, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION SHOP and FAIR WORK AUSTRALIA

File number: NSD 1736 of 2012

Judge: RARES J

Date of judgment: 4 February 2013

Catchwords: INDUSTRIAL LAW – statutory construction – meaning of "greenfields agreement" in s 172(2)(b) Fair Work Act 2009 (Cth) – jurisdictional fact – whether agreement was a "genuine new enterprise" – where preparatory steps had commenced – whether employees had been previously employed by holding company – whether the existence of a greenfields agreement is a jurisdictional fact s 187(5) Fair Work Act 2009 (Cth) – consideration of effect of power of the Fair Work Commission to approve a greenfields agreement Held: the Parliament intended that unless the conditions in s 172(2)(b) or (3)(b) of the Fair Work Act 2009 (Cth) were met, an employer could not make a greenfields agreement and the Commission had no power to approve the agreement – even very substantial preparatory steps engaged in by a holding company do not necessarily disqualify an agreement from being a greenfields agreement – a genuine new enterprise was being established or was proposed to be established at the time the greenfields agreement was made