- There is a fine line between an employer undertaking preparatory steps in the course of establishing a ‘new enterprise’ – for which a greenfields agreement can be made – and when the FWC will consider the employer is already conducting the ‘new enterprise’ and therefore not able to make a greenfields agreement.
- Employers need to carefully consider the timing of negotiations with unions in light of contractual or project deadlines to complete the work.
- The 2015 amendments to the Fair Work Act, providing for a six-month ‘negotiation period’ to break a bargaining deadlock, have had limited judicial consideration.
In Application by CPB Contractors Pty Limited & John Holland Pty Ltd  FWC 1122, the Fair Work Commission (‘FWC’) held that a major Victorian infrastructure project was not a genuine new enterprise at the time the greenfields agreement was submitted for approval, and therefore the FWC did not have jurisdiction to approve the agreements. It is the first case in which the FWC has considered the 2015 amendments to the Fair Work Act 2009 (Cth) (‘FW Act’) aimed at resolving protracted greenfields bargaining disputes. It also highlights the difficulty in having a six-month ‘negotiation period’ in the context of greenfield projects.