No 'new business' existed to satisfy greenfield provisions

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No 'new business' existed to satisfy greenfield provisions

In refusing to certify an agreement, because it could allow an employer and union to reach 'site specific agreements with which existing employees must comply and in which they have no say', the AIRC stated that s170LL of the Workplace Relations Act 1996 (greenfield agreement provision) is couched in specific terms and can only be relied upon when the provisions are met.

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In refusing to certify an agreement, because it could allow an employer and union to reach 'site specific agreements with which existing employees must comply and in which they have no say', the AIRC stated that s170LL of the Workplace Relations Act 1996 (greenfield agreement provision) is couched in specific terms and can only be relied upon when the provisions are met.
 
The Commissioner did not consider that the section's requirements, in terms of the work being a 'new business', had been met. There was no evidence that Complete Scaffolding was establishing a new or different corporate entity for the purpose of working on the Pelican Point Power Station site.
 
The flaw in the application was that the 'existing employees of Complete Scaffolding had not been given the opportunity to be involved in negotiations and deliberations on the proposed agreement'.
 
Background
 
Complete Scaffolding Pty Ltd and the Construction, Forestry, Mining and Energy Union had concluded negotiations on an enterprise bargaining agreement and sought certification.
 
Prior to reaching agreement there were no employees working on the site. After the parties had signed the agreement, employees of Complete Scaffolding were allocated to work on the site. There was no evidence that employees had been taken on specifically to work on the Pelican Point site.
 
Decision
 
Deputy President O'Callaghan agreed that the agreement satisfied the no-disadvantage test, contained dispute prevention and settlement procedures, and specified a nominal expiry date. However, the fact remained that the work carried out by Complete Scaffolding at the site was no different to other commercial scaffolding work carried out elsewhere: 'It may well involve a new contract, but s. 170LL of the Act is not framed around new contracts'.
 
O'Callaghan considered that the failure to consult current employees also 'has the potential to prompt disputation and extreme complexity in terms of overlapping site specific Certified Agreements'. He considered the proper approach was to invoke the mechanisms contained in s. 170LJ or s. 170LK and involve current employees in the agreement making process.
 
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