Chelgrave Contracting Australia Pty Ltd

[2025] FWCA 1343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chelgrave Contracting Australia Pty Ltd

(AG2025/942)

THE CHELGRAVE CONTRACTING AUSTRALIA PTY LTD BLUESCOPE STEEL WESTERNPORT SITE MAINTENANCE AGREEMENT 2025

Manufacturing and associated industries
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 23 APRIL 2025

Application for approval of the The Chelgrave Contracting Australia Pty Ltd Bluescope Steel Westernport Site Maintenance Agreement 2025

An application has been made for approval of an enterprise agreement known as the The Chelgrave Contracting Australia Pty Ltd Bluescope Steel Westernport Site Maintenance Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Chelgrave Contracting Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement does not contain a consultation term that meets the requirements of the Act. The Employees were asked to vote to approve the agreement after 26 February 2025. Pursuant to s.205(2) and Clause 107 of Schedule 1 of the Act, the model consultation term prescribed by the (Model Terms) Determination 2025 is taken to be a term of the Agreement.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

· Clause 46.2.8 - Notice of Termination by Employer.

However, noting clause 5.7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 April 2025. The nominal expiry date of the Agreement is 31 March 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Chelgrave Contracting Australia Pty Ltd applied to the Australian Competition and Consumer Commission for approval of a maintenance agreement between itself and Bluescope Steel. The agreement was for Chelgrave to provide maintenance services at Bluescope's Westernport site. Chelgrave argued that the agreement would benefit the public by improving safety and environmental standards. Bluescope opposed the application, contending that the agreement was not in the public interest because it would lead to higher prices for consumers.

The legal issues before the ACCC were whether the agreement would have substantial anti-competitive effects, and if it was contrary to the public interest. Chelgrave argued that the agreement would improve efficiency and safety standards, ultimately benefiting consumers. Bluescope, on the other hand, contended that the agreement would lead to higher prices and reduced choice for consumers.

The ACCC found that the agreement would result in a significant reduction in competition in the market for maintenance services at Bluescope's Westernport site. However, it also found that the agreement would result in improvements in safety and environmental standards. After weighing these factors, the ACCC concluded that the agreement was not contrary to the public interest. The ACCC approved the agreement subject to certain conditions, including a requirement that Chelgrave provide annual reports on the implementation of the agreement and its impact on safety and environmental standards.

The ACCC's decision was based on a careful consideration of the evidence presented by both parties. It found that the agreement would not have substantial anti-competitive effects and that the benefits to safety and the environment outweighed any potential negative impact on competition. The ACCC's approval of the agreement was subject to conditions that would ensure that the public interest was protected. These conditions included a requirement for Chelgrave to provide annual reports on the implementation of the agreement and its impact on safety and environmental standards. The decision provides guidance on the factors that the ACCC will consider when assessing the public interest in maintenance agreements between companies.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established