The Full Bench held that a discrete operational zone (the Tunnel Zone) within a larger infrastructure project constitutes a 'genuine new enterprise' under s 172(2)(b)(i) of the Fair Work Act, rejecting the contention that a greenfields agreement must relate to the entirety of a project or that the enterprise is indivisible once project work has commenced. The Full Bench also held that non-compliance with s 205A(1) (delegates' rights term requirement) — arising because the relevant modern award delegates' rights clause was quashed by CFMEU v AIG [2025] FCAFC 187 — does not render an agreement incapable of approval, but raises a public interest concern under s 187(5)(b) that can be addressed by an undertaking incorporating s 350C rights into the agreement. The consultation and dispute resolution provisions were found not to be 'AWU-exclusive' because a general right of employee representation in clause 10.1 applied across all employment matters.
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