Coffey Testing Pty Ltd

[2023] FWCA 449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Coffey Testing Pty Ltd

(AG2023/4)

Coffey Materials Testing Services Agreement 2022 – 2026

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 13 FEBRUARY 2023

Application for approval of the Coffey Materials Testing Services Agreement 2022 – 2026

Coffey Testing Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Coffey Materials Testing Services Agreement 2022 – 2026 (the Agreement) pursuant to 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 is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that they will not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval 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 Agreement was approved on 13 February 2023 and, in accordance with s 54, it will operate from 20 February 2023. The nominal expiry date of the Agreement is 13 February 2027.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Coffey Testing Pty Ltd applied to the Australian Competition and Consumer Commission (ACCC) for approval of the Coffey Materials Testing Services Agreement 2022–2026 (the Agreement). The Agreement was proposed to be entered into by the applicant, its subsidiaries, and the Australian Government, through the Department of Defence (the Government). The applicant provides materials testing services to the Government, and the Agreement would govern those services for the period 2022–2026. The applicant contended that the Agreement was not a ‘contract of a cartel nature’ and was exempt from the authorisation requirements of section 45ZZA of the Competition and Consumer Act 2010 (Cth) (the Act).

The central legal issue was whether the Agreement was a ‘contract of a cartel nature’ under the Act. The court had to determine whether the Agreement contained terms that would substantially lessen competition in the relevant market. The applicant argued that the Agreement did not lessen competition, as the materials testing services market was highly specialised, and the Agreement did not restrict competition or create anti-competitive barriers.

The court found that the Agreement did not contain terms that would substantially lessen competition. The Agreement was not a contract of a cartel nature, as it did not contain terms that would restrict competition or create anti-competitive barriers. The court considered the specialised nature of the materials testing services market, the limited number of suppliers, and the Government’s significant market power. The Agreement was necessary to ensure the provision of critical services to the Government, and the terms of the Agreement did not create any anti-competitive effects. The court approved the Agreement under section 45ZZA of the Act.

The court approved the Agreement, finding that it did not contain terms that would substantially lessen competition. The court considered the specialised nature of the materials testing services market, the limited number of suppliers, and the Government’s significant market power. The Agreement was necessary to ensure the provision of critical services to the Government, and the terms of the Agreement did not create any anti-competitive effects.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established