[2014] FWCFB 4342

[2014] FWCFB 4342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift
(C2014/346)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT MCCARTHY
COMMISSIONER CLOGHAN

MELBOURNE, 1 JULY 2014

Appeal against decision [[2014] FWC 1119] of Deputy President Gostencnik at Perth on 14th February 2014 in matter number AG2013/10329 - necessary for normal conduct of enterprise.

Introduction

[1] The Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift (TBG) has appealed a decision 1 of Deputy President Gostencnik which dismissed TBG’s application for approval of the Tutt Bryant Group Limited AMC Henderson Materials Handling and Assembly Yard Works Greenfields Agreement 2013 (the TBG Greenfields Agreement).

[2] TBG made the TBG Greenfields Agreement with The Australian Workers’ Union (the AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) on 3 December 2013. The TBG Greenfields Agreement was said to be a “greenfields agreement” within the meaning of s 172 of the Fair Work Act 2009 (Cth) (the FW Act) and to apply to all work undertaken by employees engaged by TBG at the Australian Marine Complex Common User Fabrication Facilities, Henderson, Western Australia (the AMC Project) in certain classifications.

[3] We heard or conducted the appeal without conducting a hearing because it appeared to us that it could be adequately determined without persons making oral submissions for consideration in the appeal and the persons who would otherwise, or who would, make submissions for consideration in the appeal consented to the appeal being heard or conducted without a hearing. 2 Pursuant to directions for the filing of full written submissions in the appeal, we received full written submissions in support of the appeal from TBG, full written submissions in opposition to the appeal from The Maritime Union of Australia (the MUA) and full written submissions in reply from TBG.

Relevant Background

[4] The facts as set out in the Deputy President’s decision were not challenged on appeal. In this regard, the Deputy President said:

“Factual context

[4] In May 2013 the Applicant was awarded the contract by Subsea 7 (Client) to perform work at the AMC Project. The works associated with the awarded contract was a new project for the Applicant, and it is common ground that it was a genuine new enterprise that the Applicant was establishing.

[5] The main aspect of the awarded contract related to the supply of equipment for the performance of work at the AMC Project, however there would be an opportunity to supply labour in respect of some of the work as, and when required by the Client. The Applicant commenced discussions with the AWU and the AMWU about the possibility of making a greenfields agreement on about 7 October 2013. Also in October 2013, a number of persons were given letters containing an offer of employment for work at the AMC Project (letters of offer). The letters of offer were signed by the National Operations Manager of the Applicant, Mr Malcolm Smith... Relevantly the letters of offer each provided the following:

‘We are pleased to offer you an assignment with Tutt Bryant Group Ltd (the company) for work as … at the Australian Marine Complex (AMC) Common User Facility (CUF) in accordance with the terms and conditions in this letter of offer.

…

1 Commencing Work

Should you choose to accept this offer, your employment will be subject to the successful completion of the Company’s induction course, together with the induction courses for projects and worksites where you will be required to work. We will let you know when these courses will take place.

Your employment will commence on [no earlier than 18 November 2013 and no later than 9 December 2013]. Your point of hire will be Perth (the point of hire).

…

The terms and conditions under the Tutt Bryant Group Limited AMC CUF Henderson Facility Enterprise Agreement 2013 (the Greenfield Agreement) are incorporated into this contract of employment.’

[6] Six employees who were offered employment as either crane operators or riggers on the AMC Project signed an acceptance of the offer of employment. They did so variously between 16 October 2013 and 22 October 2013. A contract of employment for each employee came into existence on acceptance of the offer, however employment had not begun. Between 18 November and 25 November 2013 the same six employees commenced work for the Applicant at the Applicant’s Redcliffe Yard. These employees performed duties associated with the ongoing operational requirements of the Applicant at the Redcliffe Yard including conducting trials for accurate loading to comply with over mass permits for cranes intended to be used at the AMC Project. Whilst engaged at the Redcliffe Yard these employees were not engaged pursuant to the terms and conditions set out in the letters of offer in relation to which they had earlier signed an acceptance. Rather the employees were subject to different ‘general’ terms and conditions of employment. The six employees commenced work at the AMC Project on 5 December 2013, after the Agreement had been made.

[7] Mr Smith was cross-examined about the circumstances in which the six employees were engaged by the Applicant. In the course of cross examination Mr Smith gave the following evidence:

‘Did your six employees attend work at your yard first or were they told to attend at the AMC?---On the fourth they attended the yard - on the night of the fourth. They then attended on the fifth.

On the fifth they attended at the AMC and commenced work there?---Yes, correct.

After you signed the agreement?---That's correct. There were further inductions and then they started the work.

Well, I put it to you that unless you had been engaging these employees specifically to work at the AMC project, you would not have incorporated the greenfields agreement in their contract of employment. What do you say to that?

---You have to have the agreement. I don't understand why you keep coming back to this.

Sorry. You have to have the agreement before what? You have to have the agreement before your client will allow you to work at the AMC? Is that right?---Sorry?

You have to have the agreement before your client will allow you to attend the AMC?---No.

Well, I'm asking you to finish your sentence. You said you have to have the agreement before - then you didn't finish the sentence. So can you finish the sentence please? What do you have to have the agreement before you can do?---We have to have the agreement in place before the people can attend site.

Why do you have to have the agreement in place before people can attend site?---Because it's a greenfields agreement.

But you already had these employees, didn't you?---Yes, but they were doing other work. They were actually employed on alternate duties.

Why do you have to have the agreement in place before you can attend site? Who told you that?---That is my personal opinion. We held the guys in the yard, give them alternate work under an alternate agreement until such time as we had the enterprise agreement registered.

Right. So you had to have the agreement signed off before you could then send them to the AMC?---That's correct.

If you had - if you didn't have the greenfields agreement yet you still had them at your yard?---We would still have the crane on site. We would have used contractors to build the crane which we've done in the past.

You would still have these six employees employed at your yard?---That's correct.

They wouldn't be employed under the terms of this proposed greenfields agreement because you wouldn't have a greenfields agreement?---That's correct.

So you employ the employees for the project?---Yes.

You hold them at your yard?---Yes.

You reached the greenfields agreement. You submit that greenfields agreement for approval - sorry, for agreement. Sorry, you're nodding, could you - - -?---Yes.

Yes. Then once you've signed off on that agreement, then those employees go to the AMC project?---That's correct; on 5 December.’ (My underlining)

[8] It seems clear from Mr Smith’s evidence reproduced above and from the terms of the letters of offer which six employees accepted, that the employees were offered employment by the Applicant for the purpose of working on the AMC Project. Employment with the Applicant of the six employees commenced before 3 December 2013. The six employees commenced employment with the Applicant before the Agreement was made and were given work to perform in the Redcliffe Yard so that they would be available to be deployed onto the AMC Project once the Agreement had been made and the Client requested the labour. So it is that on 5 December 2013 the Applicant had available to it labour to deploy to the AMC Project, and did so.” 3 (Footnotes omitted)

First instance decision

[5] In considering the application for approval of the TBG Greenfields Agreement, the Deputy President set out s 172(2)(b) of the FW Act concerning the making of a greenfields agreement. Section 172(2) is as follows:

“172 Making an enterprise agreement

Single-enterprise agreements

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

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(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.

Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).”

[6] Section 172(4) of the FW Act provides that a single-enterprise agreement made in accordance with s 172(2)(b) is a greenfields agreement.

[7] An effect of section 172(2)(b) is that an employer cannot make an enterprise agreement that relates to a genuine new enterprise that the employer is establishing or proposing to establish, with one or more relevant employee organisations, if the employer has employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

[8] However, s 172(2)(a) provides that an employer can make an enterprise agreement with employees, who are employed at the time the agreement is made, who will be covered by the agreement.

[9] In considering s 172(2)(b) of the FW Act the Deputy President said:

“[10] If, before an agreement is made an employer that is establishing, or proposes to establish a genuine new enterprise, employs a person who will be necessary for the conduct of that enterprise and will be covered by the proposed agreement, the agreement subsequent made with a relevant employee organisation will not be a greenfields agreement.

[11] An employer may take prepatory steps to ensure that the new enterprise is successful, including identifying and even securing sources of labour. It will not be fatal to making a greenfields agreement that before the agreement is made an employer has offered employment to a person who will work in the new enterprise. Nor will it be fatal that, before an agreement is made the employer already [sic] in its employ, persons who are ultimately transferred to work in, or in connection with the new enterprise. It is also not fatal to making a greenfields agreement that an offer of employment made to a person who will be necessary for the conduct of the enterprise has been accepted by the person, provided employment does not begin until after the greenfields agreement is made.

[12] But a person who will be necessary for the normal conduct of the new enterprise must not have begun employment with the employer before the agreement is made. ‘Employed’ in the context of s. 172(2) of the Act means employed by the employer in any position. It is not limited to employment in or in connection with the new enterprise. If a person is employed in any capacity by the employer and it is known that employee will be necessary for the usual conduct of the new enterprise and will be covered by the agreement, the employer cannot make a greenfields agreement. To conclude otherwise would be to strain the language of s. 172(2).” 4

[10] In applying the facts before him to s 172(2)(b) of the FW Act, the Deputy President said.

“[12]... In the present case it does not matter that the six employees were not working on the AMC Project when the Agreement was made. What matters is that those employees were employed before the Agreement was made and the Applicant had employed them at the Redcliffe Yard in order that they would be available to be deployed to and to work on the AMC Project. Hence when employed, the six employees would be necessary for the normal conduct of the new enterprise.

[13] The Applicant set out to engage persons who would ultimately work on the AMC Project. It commenced its search for suitable persons sometime before October 2013. In early October 2013, the Applicant made offers of employment to persons who would commence employment on the AMC Project no earlier than 18 November 2013 and no later than 9 December 2013. Engaging employees in such a conditional way is not fatal to subsequently making a greenfields agreement. But once the six employees, who had clearly been identified for work on the AMC Project and clearly offered employment for that project, commenced employment with the Applicant before the Agreement was made, this ended the possibility that a greenfields agreement could be made by the Applicant for the AMC Project. In this case the six employees commenced at the Redcliffe Yard between 18 and 25 November 2013, the Agreement was made on 3 December 2013 and the employees commenced work on the project on 5 December 2013 performing work covered by the Agreement.

[14] Based on the evidence of Mr Smith and the letters of offer, I am satisfied that, before the Agreement was made, six employees were employed by the Applicant. When they were employed, those six employees were necessary for the normal conduct of the AMC Project and they would be covered by the Agreement. It follows that the Agreement is not a greenfields agreement.” 5

[11] The Deputy President concluded by stating that:

“[15] The application for approval of the Tutt Bryant Group Limited AMC Henderson Materials Handling and Assembly Yard Works Greenfields Agreement 2013 is dismissed.” 6

Grounds of appeal

[12] On appeal, TBG submitted that the Deputy President erred in dismissing the application for approval of the TBG Greenfields Agreement:

by failing to consider relevant authorities put to him;

by failing to adequately consider the evidence put forward by TBG; and

by failing to adequately consider whether the MUA had jurisdiction to be heard in relation to the application for approval.

[13] The MUA submitted the Deputy President did not so err.

[14] We turn to deal with the grounds of appeal.

Consideration of the appeal

a) Authorities

[15] The authorities TBG said were put to the Deputy President and which they submitted he failed to consider were:

Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Others 7 (Cimeco) and Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission;8

Re Brunel Technical Services Offshore Pty Ltd Bayu-Darwin Pipeline Agreement 2004 9 (Brunel 1) and The Australian Workers’ Union v Brunel Technical Services and Others10 (Brunel 2);

Re Abigroup, John Holland and the Australian Workers Union - Regional Rail Link Footscray to Sunshine Project Agreement 2011-2015 11 (Abigroup); and

National Union of Workers, New South Wales v HP Distribution Pty Ltd 12 (HP Distribution).

[16] We think the Deputy President dealt with these authorities implicitly, if not explicitly, at paragraphs [10] to [12] of his decision, or the authorities are distinguishable on the facts.

[17] Cimeco 13 concerned an appeal against the approval by Fair Work Australia (the FWA), the predecessor to the Fair Work Commission (the FWC), of an enterprise agreement. The appeal dealt with whether four employees who voted to approve the proposed enterprise agreement were entitled to vote. The Full Bench found they were not entitled to vote to approve the proposed enterprise agreement because at the time of the vote they did not fall within the coverage of the agreement.14 The Full Bench found they were not entitled to vote despite the fact they were working for the employer elsewhere at the time of the vote and at some future point were to be “redeployed, mobilised in and work” for the employer in an area covered by the proposed agreement.15

[18] It is apparent the Deputy President recognised the authority in Cimeco for in his decision he pointed out that it would not be fatal to the making of a greenfields agreement that “before an agreement is made the employer already [has] in its employ, persons who are ultimately transferred to work in, or in connection with the new enterprise”. 16

[19] TBG did not make a separate submission on appeal in respect of Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission.

[20] Brunel 1 17 concerned an application for certification by the Australian Industrial Relations Commission (the AIRC), a predecessor to the FWC, of a greenfields agreement. Brunel 218 concerned an appeal against the certification of the greenfields agreement. The evidence before the AIRC, and accepted by it, was that Brunel Technical Services Offsite Pty Ltd (Brunel), the employer, provided training services for various oil and gas industry occupations and offered employment contracts to people who agreed to undergo its training program, with the employment contracts covering the period of the training programme. Such trainees were considered for subsequent employment with Brunel on various projects once they had completed their training programme. However, not all of the trainees were offered employment with Brunel after their training. Before the enterprise agreement the subject of the application for certification was made between Brunel and some unions, no trainee or anyone else had been employed to work at the new enterprise. The greenfields agreement was certified by the AIRC and the appeal against certification was unsuccessful.

[21] The Deputy President, in the decision before us, evidently recognised the authority in Brunel 1 and Brunel 2. In his decision he pointed that provided a person necessary for the normal conduct of the new enterprise has not begun employment with the employer before the enterprise agreement is made, 19 “an employer may take preparatory steps to ensure that the new enterprise is successful, including identifying and even securing sources of labour”20 or have “offered employment to a person who will work in the new enterprise”,21 without fatally prejudicing their right to make a greenfields agreement.

[22] Further, on the facts, the Deputy President found that before the enterprise agreement before him was made, TBG had employed persons necessary for the normal conduct of the genuine new enterprise and who would be covered by the agreement. For the reasons given by the Deputy President, we think that finding was correct.

[23] We add that under s 172(2)(b) of the FW Act it is whether an employer has employed any of the persons who will be necessary for the normal conduct of the genuine new enterprise and will be covered by the enterprise agreement, rather than whether there is a policy that approval for employment at the genuine new enterprise will not be given without an approved enterprise agreement covering the relevant employees, that is relevant.

[24] Abigroup 22 concerned an application for approval by FWA of a greenfields agreement. FWA found no existing employees of the joint venture employers to the agreement were indispensable for the normal conduct of the genuine new enterprise covered by the agreement and the joint venture employers had not employed any of the persons necessary for the normal conduct of the genuine new enterprise and who would be covered by the agreement. In respect of the existing employees of the joint venture employers, FWA said:

“[26] Existing employees may very well have skills which might lead to them being employed on the enterprise to be covered by the greenfields agreement, but that is long way away from establishing that existing employees are indispensable to the normal conduct of the enterprise to be covered by the greenfields agreement. In the present matter the very fact that there are existing employees of John Holland or Abigroup employed under the terms of other enterprise agreements suggests that as they are already engaged on work which is not part of the enterprise to be covered by the greenfields agreement that they are not indispensable for the normal conduct of the enterprise to be covered by the greenfields agreement.” 23

[25] As we have indicated, the Deputy President recognised the type of scenario in Abigroup. In his decision he pointed out that it would not be fatal to the making of a greenfields agreement that “before an agreement is made the employer already [has] in its employ, persons who are ultimately transferred to work in, or in connection with the new enterprise”. 24

[26] However, on the facts, the Deputy President found that before the enterprise agreement before him was made TBG had employed persons necessary for the normal conduct of the genuine new enterprise and who would be covered by the agreement. The factual scenario in Abigroup was relevantly different to that before the Deputy President.

[27] HP Distribution concerned an application for constitutional writ relief against a FWA decision approving a greenfields agreement. The greenfields agreement was made between HP Distribution Pty Ltd and the Shop, Distributive and Allied Employees Association on 9 December 2011. In HP Distribution, Rares J said:

“In my opinion, the Commission could only approve an agreement as a greenfields agreement under ss 186(1) and 187(5) if the document satisfied the requirements of s 172(2)(b) or 172(3)(b). That is, the actual existence of the facts necessary for an agreement to meet the statutory criteria for a greenfields agreement was a jurisdictional fact necessary to ground the Commission’s power to approve it. If the agreement were not of that nature, then the only enterprise agreement that the employer could make was one under s 172(2)(a). Relevantly, s 172(2)(b) required that a greenfields agreement have the following characteristics, namely that:

an employer (here HP Distribution) had made the enterprise agreement with a relevant employee organisation (here SDA);

the agreement related to a genuine new enterprise that the employer was establishing or was proposing to establish;

the employer had not employed, before the agreement was made, any of the persons who were necessary for the normal conduct of that enterprise; and

those persons were to be covered by the agreement.

It is significant that in the expression ‘are establishing or propose to establish’ s 172(2)(b)(i) addressed alternatives comprised of a present and potential state of the new enterprise. In its ordinary and natural meaning that expression contemplated that the employer or someone whose work it adopts can have progressed the new enterprise beyond a planning or merely conceptual phase. However, s 172(2)(b)(ii) ensured that the employer could not employ anyone who would be necessary for the normal (as opposed to preparatory) conduct of the enterprise before it could enter a greenfields agreement. Moreover, s 172(3)(b) contemplated that the agreement also could relate to a genuine new enterprise that two or more separate employers ‘are establishing or propose to establish’. The words in the present tense in each of s 172(2)(b) and (3)(b), ‘are establishing’, indicated that preparatory work may be done, including significant preparatory work prior to the agreement being made.

It is difficult to contemplate how two or more employers, who were not all single interest employers, would be able to make an enterprise agreement for the purposes of s 172(3)(b) unless significant preparatory work to formulate business plans and define roles for each of those employers had been done. Where two or more employers with different interests agree to undertake a new enterprise, ordinarily, they will need to identify the nature and scope of their individual responsibilities for the future conduct of the enterprise, what each of those employers expects the business to do, how its activities will be undertaken, the nature of the tasks and work the employees will perform, their training and the other incidents that such a complex arrangement would involve. The practical implementation of such an arrangement may also require considerable lead time before the new enterprise would be ready to commence operating. Such arrangements might also need to address any issue that might arise under the provisions of Pt IV of the Competition and Consumer Act 2010 (Cth) in relation to their collaboration on that matter.

There is nothing in s 172(3) that identifies any particular assignment of responsibilities between the two or more employers as to whether one or all is or are to undertake the relevant establishment work, or whether the enterprise agreement will be made by all of the employers, one or some of them together with, or simply by, a special purpose vehicle that is a newly incorporated subsidiary of one or some or all of the employers. Those matters suggest that the Parliament intended that a genuine new enterprise could be in the process of being established to a greater or lesser extent before the ink had to be dry on greenfields agreement or the vehicle by which it would be conducted was identified or incorporated. Indeed, the expressions ‘are establishing’ and ‘propose to establish’ in each of ss 172(2)(b)(i) and (3)(b)(i) indicated that one of two scenarios might exist and that preparatory steps, even of a very substantial nature, would not necessarily disqualify an agreement from being a greenfields agreement for the purposes of s 172(2) or (3). The mere fact that an employer, or a related company, had taken steps to establish the business, of itself, will not detract from the genuineness of the new enterprise or preclude the employer subsequently being able to enter a greenfields agreement provided that the requirements in s 172(2) or (3) are met.” 25

[28] His Honour dismissed the application for relief and in doing so said that “[i]mportantly, no individuals had been employed by HP Distribution prior to 9 December 2011”. 26 That date being the date the agreement was made. His Honour recognised that after 9 December 2011, HP Distribution advertised for staff and by 16 January 2012, the first employees of HP Distribution began performing work covered by the greenfields agreement.27

[29] Again as we have indicated, on the facts the Deputy President found that before the enterprise agreement before him was made TBG had employed persons necessary for the normal conduct of the genuine new enterprise and who would be covered by the agreement. The factual scenario in HP Distribution was, therefore, relevantly different to that before the Deputy President.

[30] Further the Deputy President’s decision is not inconsistent with the authority in HP Distribution. As TBG states in their appeal submissions “[t]he Deputy President in his reasons accepts that ‘preparatory steps’ including ‘identifying and even securing sources of labour’ as well as making an ‘offer of employment’ are not fatal to the making of a greenfields agreement”. 28

[31] Moreover, contrary to the suggestion of TBG, the Deputy President’s decision is not inconsistent with the objects of Part 2-4 of the FW Act. There is no basis in authority or the objects of Part 2-4 of the FW Act for the suggestion of TBG that s 172(2)(b) of the FW Act requires an employee of an employer to have commenced or undertaken work necessary for the normal conduct of the genuine new enterprise the employer is establishing or proposes to establish before a greenfields agreement is unavailable.

[32] For the reasons we have given we are not persuaded the Deputy President erred as suggested by TBG in respect of the authorities put to him.

b) Evidence

[33] With respect to the evidence before the Deputy President, TBG submitted the Deputy President erred by failing to acknowledge that the contract of employment in relation to working at the AMC Project was subject to strict terms and conditions which included a commencement date of employment coinciding with physically being on site at the AMC Project. They submitted that any persons that undertook work for TBG prior to 5 December 2013 were employed by TBG under general terms and conditions of employment which had no correlation to a person’s employment at the AMC Project. 29

[34] We are not persuaded the Deputy President so erred. As we have indicated, early in his decision the Deputy President referred to and set out the terms of the said contract of employment, being letters of offer from TBG signed by the employees.

[35] The Deputy President then made the following findings:

“[8] It seems clear from Mr Smith’s evidence reproduced above and from the terms of the letters of offer which six employees accepted, that the employees were offered employment by the Applicant for the purpose of working on the AMC Project. Employment with the Applicant of the six employees commenced before 3 December 2013. The six employees commenced employment with the Applicant before the Agreement was made and were given work to perform in the Redcliffe Yard so that they would be available to be deployed onto the AMC Project once the Agreement had been made and the Client requested the labour. So it is that on 5 December 2013 the Applicant had available to it labour to deploy to the AMC Project, and did so.” 30

[36] Later in his decision, in considering the matter before him, the Deputy President concluded as follows in respect of the contract of employment and TBG’s employment of the employees in question before the commencement of work at the genuine new enterprise:

[37] We concur with the Deputy President’s findings and conclusion in respect of the contract of employment and the relevant employees work at the Redcliffe yard of TBG prior to working at the genuine new enterprise. In the result, the effect of those two occurrences was that while establishing or proposing to establish the genuine new enterprise, TBG had employed persons necessary for the normal conduct of the genuine new enterprise and who would be covered by the TBG Greenfields Agreement.

[38] TBG also submitted the Deputy President erred by failing to recognise that the relevant employees were in fact not “necessary” for the normal conduct of TBG’s enterprise at the AMC project, as alternative arrangements to undertake the work at the genuine new enterprise, such as using contractors, could have been made by TBG if necessary. 32

[39] We think this submission of TBG about the relevant employees not being necessary because alternative arrangements to undertake their work could have been made is without merit.

[40] As a matter of fact in respect of the AMC Project, no alternative arrangements were made by the TBG to undertake the work at the AMC Project.

[41] Moreover, the meaning of the word “necessary” was canvassed in a different context in A v Corruption and Crime Commissioner. 33 There, on appeal, Martin CJ and Murphy JA noted that the primary judge had observed that:

“Necessary is capable of a wide range of meanings. The meaning will depend on the statutory context. One meaning is needing to be done, or essential. As the High Court has observed, there is, in Australia, ‘a long history of judicial and legislative use of the term ‘necessary’ not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted’: Mulholland v Australian Electrical Commission [2004] HCA 41; (2004) 220 CLR 181 [39]. See, for example, the cases outlined by O’Keefe J in Elcham v Commissioner of Police [2001] NSWSC 614; (2001) 53 NSWLR 7 [48] - [58]. In some contexts, necessary may not mean essential but merely conducive: Lithgow City Council v Jackson [2001] HCA 36; (2011) 244 CLR 352 [53].” 34

[42] We do not think the word “necessary” in s 172(2)(b)(ii) of the FW Act has the meaning suggested by TBG. The TBG submission is contrary to the scheme in s 172(2) of the FW Act. The submission suggests that an employer could make an enterprise agreement that relates to a genuine new enterprise that the employer is establishing or proposing to establish, with one or more relevant employee organisations, despite the employer having employed persons only for the normal conduct of that enterprise and who will be covered by the agreement, provided an alternative to their employment for the normal conduct of that enterprise is available. This would be so even if the alternative is not used by the employer. The FW Act, however, provides that in that factual circumstance the employer may make the enterprise agreement with the employees who are employed at the time the agreement is made and who will be covered by the agreement, pursuant to s 172(2)(a).

[43] Whether an employer has employed any of the persons who will be necessary for the normal conduct of a genuine new enterprise that the employer is establishing or proposes to establish will be a matter of fact in each case. Relevant in that regard may be the objectively ascertained intent of the parties, when the persons are employed, and the bases on which they are employed, amongst other things.

[44] Further, TBG submitted the employees only became “necessary” for the normal conduct of the genuine new enterprise when they commenced work at the AMC Project. 35 This submission ignores that the employees were employed by TBG prior to the commencement of the AMC Project because they were necessary for the normal conduct of the AMC Project on its commencement. In that circumstance, because of the provisions in s 172(2)(b)(ii) of the FW Act, the making of a greenfields agreement for the AMC Project was not open to TBG.

c) Jurisdiction

[45] TBG’s ground of appeal that the Deputy President erred by failing to consider whether the MUA had jurisdiction to be heard in relation to the application for approval is also without merit.

[46] We note that ss 589(1) and 590 of the FW Act provide as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with...

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.

590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).”

[47] TBG did not refer to any authority providing that the MUA had to have constitutional coverage of those covered by the TBG Greenfields Agreement before it could be heard by the Deputy President in relation to the application for approval of the TBG Greenfields Agreement.

[48] Further, at first instance, TBG took no objection to the MUA being heard in the matter before the Deputy President and sought no adjournment of the matter having regard to the MUA’s submissions.

[49] In the circumstances, we are not persuaded the Deputy President erred in hearing the MUA on the application for approval of the TBG Greenfields Agreement.

Conclusion

[50] TBG maintained it was in the public interest for us to grant permission to appeal having regard to the errors in the decision of the Deputy President resulting in manifest injustice. However, TBG has failed to establish any appealable error in the Deputy President’s decision the subject of this appeal.

[51] We are not satisfied we should grant permission to appeal in the public interest or otherwise. We refuse permission to appeal and, to the extent necessary, dismiss the appeal. An order 36 to that effect is being issued at the same time as this decision.

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SENIOR DEPUTY PRESIDENT

Final written submissions:

Appellant’s written submissions in reply.

29 April.

2014.

1 Re Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift, [2014] FWC 1119.

2 Fair Work Act 2009 (Cth), s.607(1).

3 Re Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift, [2014] FWC 1119.

4 Ibid.

5 Ibid.

6 Ibid.

8 [1999] FCA 847.

12 [2013] FCA 139.

13 Cimeco Pty Ltd v CFMEU and Others, [2012] FWAFB 2206.

14 Ibid at [52].

15 Ibid at [50].

16 Re Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift, [2014] FWC 1119 at [11].

17 Re Brunel Technical Services Offshore Pty Ltd Bayu-Darwin Pipeline Agreement 2004, PR949542.

18 The Australian Workers’ Union v Brunel Technical Services and Others, PR950406.

19 Re Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift, [2014] FWC 1119 at [12].

20 Ibid at [11].

21 Ibid.

22 Re Abigroup, John Holland and the Australian Workers Union - Regional Rail Link Footscray to Sunshine Project Agreement 2011-2015, [2011] FWAA 5724.

23 Ibid.

24 Re Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift, [2014] FWC 1119 at [11].

25 National Union of Workers, New South Wales v HP Distribution Pty Ltd, [2013] FCA 139 at [29] to [32].

26 Ibid at [17].

27 Ibid.

28 Appellant’s written submissions of 4 April 2014 at paragraph 9(d).

29 Written submissions of Tutt Bryant Group Limited in C2014/346 at p.7.

30 Re Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift, [2014] FWC 1119.

31 Ibid.

32 Written submissions of Tutt Bryant Group Limited in C2014/346 at pp.7-8.

33 [2013] WASCA 288.

34 Ibid at [48].

35 Written submissions in reply of Tutt Bryant Group Limited in C2014/346 at p.5.

36 Re Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift and Shift, PR552595.

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