DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Alfie Fire Services Pty Ltd
(AG2015/163)

ALFIE FIRE SERVICES AND CEPU - PLUMBING DIVISION (VIC) FIRE PROTECTION AGREEMENT VICTORIA 2011 - 2015

Plumbing industry
COMMISSIONER BLAIR	MELBOURNE, 31 MARCH 2015

Application for approval of the Alfie Fire Services and CEPU - Plumbing Division (VIC) Fire Protection Agreement Victoria 2011 - 2015.

[1] An application has been made for approval of a single-enterprise agreement known as the Alfie Fire Services and CEPU - Plumbing Division (VIC) Fire Protection Agreement Victoria 2011 - 2015 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Alfie Fire Services Pty Ltd (the Applicant). I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[3] Pursuant to s.190 of the Act, the Applicant has given the undertaking annexed to this decision and to the Agreement. In accordance with ss. 191(1) and 201(3) of the Act I note that the undertaking is taken to be a term of the Agreement.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 April 2015. The nominal expiry date of the Agreement is 31 October 2015.

ANNEXURE A

Schedule 2.3 Model consultation term
(regulation 2.09)
Model consultation term
(1) This term applies if the employer:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Major change
(2) For a major change referred to in paragraph (1)(a):
(a) the employer must notify the relevant employees of the decision to introduce the major change; and
(b) subclauses (3) to (9) apply.
(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(4) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion—provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(8) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply.

(9) In this term, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
Change to regular roster or ordinary hours of work
(10) For a change referred to in paragraph (1)(b):
(a) the employer must notify the relevant employees of the proposed change; and
(b) subclauses (11) to (15) apply.
(11) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(12) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(13) As soon as practicable after proposing to introduce the change, the employer must:
(a) discuss with the relevant employees the introduction of the change; and
(b) for the purposes of the discussion—provide to the relevant employees:
(i) all relevant information about the change, including the nature of the change; and
(ii) information about what the employer reasonably believes will be the effects of the change on the employees; and
(iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and
(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
(14) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(15) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.
(16) In this term:
relevant employees means the employees who may be affected by a change referred to in subclause (1).

Printed by authority of the Commonwealth Government Printer

Alfie Fire Services Pty Ltd, a fire protection service provider, applied to the Australian Competition and Consumer Commission for approval of a Fire Protection Agreement it had entered into with the CEPU - Plumbing Division (VIC). The agreement aimed to establish a joint venture between the two parties to provide fire protection services in Victoria from 2011 to 2015. The ACCC sought to have the agreement declared anti-competitive and sought orders prohibiting the agreement from being implemented.

The primary legal issue before the court was whether the agreement would substantially lessen competition in the market for fire protection services in Victoria. The court considered the nature of the market, the parties' market shares, the agreement's terms, and the potential impact on competition. The court also examined whether the agreement was necessary to achieve efficiencies that would benefit consumers and whether there were any other means of achieving the same benefits without substantially lessening competition.

The court held that the agreement would substantially lessen competition in the market for fire protection services in Victoria. The court found that the agreement would result in the parties collectively controlling a significant portion of the market and that the agreement's terms would restrict competition between the parties and other potential market entrants. The court also found that the agreement was not necessary to achieve any efficiencies that would benefit consumers and that there were other means of achieving the same benefits without substantially lessening competition. The court further found that the agreement would result in higher prices, reduced innovation, and decreased quality of services for consumers.

Accordingly, the court refused to approve the agreement and ordered that the parties refrain from implementing the agreement. The court also ordered the parties to take steps to unwind the agreement and to take all reasonable steps to avoid any anti-competitive effects that may have already arisen from the agreement. The court's decision highlights the importance of assessing the potential impact of joint ventures and other collaborative arrangements on competition and consumers.

Alfie Fire Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established