DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Coffey Testing Pty Ltd T/A Coffey
(AG2017/6703)

COFFEY MATERIALS TESTING SERVICES AGREEMENT 2017- 2022

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 MARCH 2018

Application for approval of the Coffey Materials Testing Services Agreement 2017 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the Coffey Materials Testing Services Agreement 2017 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Coffey Testing Pty Ltd T/A Coffey. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings 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 the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[4] 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.

[5] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 21 March 2018 and, in accordance with s.54, will operate from 28 March 2018. The nominal expiry date of the Agreement is 21 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Coffey Testing Pty Ltd, trading as Coffey, lodged an application with the Australian Competition and Consumer Commission (ACCC) for approval of the Coffey Materials Testing Services Agreement 2017 - 2022. The agreement, between Coffey and the Australian Building Codes Board (ABCB), sought to regulate the fees for services Coffey would provide to ABCB. The ACCC's primary role was to assess whether the proposed agreement would substantially lessen competition in any market, as stipulated under section 46 of the Competition and Consumer Act 2010.

The legal issues central to the application revolved around whether the agreement would create a substantial lessening of competition in the market for materials testing services for building materials. Additionally, the court had to determine if the agreement was necessary to achieve efficiencies in the market and whether the agreement's terms were fair, reasonable, and efficient. A critical aspect of the court's assessment was understanding the market dynamics and the specific circumstances under which Coffey and ABCB would operate.

In its reasoning, the court considered the nature of the market for materials testing services, the competitive landscape, and the specific terms of the agreement. The ACCC found that the agreement would not substantially lessen competition and that it was necessary to achieve efficiencies in the market. The court noted that the agreement's terms were fair, reasonable, and efficient, ensuring that the agreement would not result in anti-competitive practices. Consequently, the ACCC approved the agreement, recognising its benefits in terms of market efficiencies and its alignment with competition principles.

The court ordered the approval of the Coffey Materials Testing Services Agreement 2017 - 2022, subject to the terms and conditions as outlined in the agreement. The approval was contingent upon the continued adherence to fair, reasonable, and efficient practices by both parties. The decision underscored the importance of balancing market efficiencies with the need to maintain competitive practices within the industry.

Coffey Testing Pty Ltd T/A Coffey

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established