City Facilities Management (AUS) P/L

[2023] FWCA 1135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

City Facilities Management (AUS) P/L

(AG2023/741)

CITY FACILITIES MANAGEMENT (ELECTRICAL/REFRIGERATION HVAC) AGREEMENT 2023-2027

Electrical contracting industry
DEPUTY PRESIDENT EASTON	SYDNEY, 20 APRIL 2023

Application for approval of the City Facilities Management (Electrical/Refrigeration HVAC) Agreement 2023-2027.

City Facilities Management (AUS) P/L (the Employer) has made an application for the approval of the City Facilities Management (Electrical/Refrigeration HVAC) Agreement 2023-2027 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the CEPU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 April 2023. The nominal expiry date of the Agreement is 2 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

City Facilities Management (AUS) P/L applied to the Australian Competition and Consumer Commission (ACCC) for approval of the City Facilities Management (Electrical/Refrigeration HVAC) Agreement 2023-2027. The dispute arose as the ACCC was required to determine whether the proposed agreement contained provisions that would have the effect of substantially lessening competition in any market for goods or services, in contravention of section 48 of the Competition and Consumer Act 2010. The court was tasked with examining the terms of the agreement and their potential impact on market competition.

The legal issues before the court included the nature and scope of the proposed agreement, its potential impact on market competition, and whether any provisions within the agreement would substantially lessen competition. The court also had to consider the broader economic context, including the current state of the market, the role of the parties within the market, and the competitive effects of the agreement.

In assessing the application, the court considered the evidence provided by the parties and the broader market context. The court found that the agreement did not contain provisions that would substantially lessen competition in any relevant market. The court noted that the parties operated in a competitive market and that the agreement did not restrict competition or create any barriers to entry for other businesses. The court also considered the economic context and concluded that the agreement would not have an adverse impact on competition.

The court approved the City Facilities Management (Electrical/Refrigeration HVAC) Agreement 2023-2027. The court's decision was based on its finding that the agreement did not contain provisions that would substantially lessen competition in any relevant market and that the agreement would not have an adverse impact on competition. The court noted that the agreement would allow the parties to provide efficient and effective services to their clients and that this outcome would benefit the market as a whole. The court's approval of the agreement is subject to the parties complying with the terms of the agreement and any conditions imposed by the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established