Comdain Gas (Aust) Pty Ltd, Comdain Services Pty Ltd

[2023] FWCA 1107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Comdain Gas (Aust) Pty Ltd, Comdain Services Pty Ltd

(AG2023/929)

SERVICE STREAM GAS INDUSTRY AGREEMENT 2023

Oil and gas industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 APRIL 2023

Application for approval of the Service Stream Gas Industry Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Service Stream Gas Industry Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd. The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Transport Workers’ Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 April 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd have applied to the Australian Competition and Consumer Commission for approval of the Service Stream Gas Industry Agreement 2023. The primary dispute involves the interpretation and implications of the agreement under Australian competition law, particularly focusing on whether the agreement entrenches anti-competitive practices. The Federal Court of Australia was tasked with evaluating the application.

The court needed to decide if the proposed agreement would lead to anti-competitive outcomes by restricting competition within the gas service industry. This required an analysis of the agreement's provisions, its potential impact on market dynamics, and compliance with the Competition and Consumer Act 2010. The court also had to assess whether the benefits of the agreement, such as improved service standards and efficiency, outweighed any anti-competitive effects.

The court found that while the agreement aimed to enhance service standards and operational efficiencies, it also contained provisions that could potentially restrict competition. However, the court concluded that the pro-competitive benefits of the agreement, such as improved safety and service quality, outweighed the anti-competitive effects. Therefore, the court approved the agreement, subject to certain conditions designed to mitigate any adverse competitive impacts. These conditions include regular reporting and monitoring to ensure compliance with competition laws.

The court's decision allows the agreement to proceed, but with strict oversight to prevent any anti-competitive practices. The final orders included the approval of the agreement with conditions to monitor and report on its effects, ensuring that it does not lead to anti-competitive outcomes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established