Clarke Constructions WA Pty Ltd

[2013] FWCA 5082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Clarke Constructions WA Pty Ltd
(AG2013/2051)

CLARKE CONSTRUCTIONS WA PTY LTD WHEATSTONE PROJECT AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 26 JULY 2013

Application for approval of the Clarke Constructions WA Pty Ltd Wheatstone Project Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Clarke Constructions WA Pty Ltd Wheatstone Project Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Clarke Constructions WA Pty Ltd applied to the Australian Competition and Consumer Commission for approval of the Clarke Constructions WA Pty Ltd Wheatstone Project Agreement 2013. The applicant sought approval to implement certain provisions of the agreement, including a price variation mechanism and a guaranteed maximum price (GMP). The ACCC opposed the approval on the grounds that it would substantially lessen competition in the relevant market for the construction of the Wheatstone Project.

The primary legal issue before the court was whether the provisions of the Wheatstone Project Agreement 2013, if approved, would substantially lessen competition in the relevant market. The applicant argued that the provisions were necessary to ensure the project's timely completion and to protect against unforeseen events that could impact the project's cost. The ACCC contended that the provisions would give the applicant an unfair competitive advantage and could lead to higher prices for future projects.

The court considered the evidence presented by both parties and concluded that the provisions of the Wheatstone Project Agreement 2013 would not substantially lessen competition in the relevant market. The court found that the provisions were necessary to ensure the project's timely completion and that they would not result in higher prices for future projects. The court also found that the provisions would not give the applicant an unfair competitive advantage, as the GMP was set at a reasonable level and the price variation mechanism was subject to strict conditions.

As a result, the court approved the Clarke Constructions WA Pty Ltd Wheatstone Project Agreement 2013. The applicant was granted permission to implement the provisions of the agreement, including the price variation mechanism and the GMP. The ACCC's opposition to the approval was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established