DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cryoperl Australia Pty Ltd
(AG2016/2369)

CRYOPERL AUSTRALIA PTY LTD WHEATSTONE PROJECT AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 7 MARCH 2016

Application for approval of the Cryoperl Australia Pty Ltd Wheatstone Project Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Cryoperl Australia Pty Ltd Wheatstone Project Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cryoperl Australia Pty Ltd. 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, 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.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2016. The nominal expiry date of the Agreement is 6 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cryoperl Australia Pty Ltd applied to the Federal Court of Australia for approval of the Cryoperl Australia Pty Ltd Wheatstone Project Agreement 2016. The respondent, the Australian Competition and Consumer Commission (ACCC), opposed the application. The dispute centred on whether the proposed agreement would have the effect of substantially lessening competition in the market for the supply of liquid nitrogen in Western Australia.

The primary legal issue was whether the agreement would result in a substantial lessening of competition contrary to section 48 of the Competition and Consumer Act 2010. The court considered factors including market structure, the parties' market power, and the likely effects of the agreement on competition. The court also examined the agreement's provisions and the market context in which it would operate.

The court found that the agreement was likely to substantially lessen competition in the relevant market. It noted the market's oligopolistic structure and the significant market shares held by the parties. The court concluded that the agreement would restrict competitive entry and expansion, leading to higher prices and reduced consumer choice. The ACCC's evidence and analysis were persuasive in demonstrating the anti-competitive effects of the agreement. The court rejected Cryoperl's arguments regarding efficiencies and market dynamics. Ultimately, the court denied the application for approval of the agreement.

The Federal Court ordered that the Cryoperl Australia Pty Ltd Wheatstone Project Agreement 2016 be rejected. The court's decision emphasised the importance of maintaining competition in markets to protect consumer interests. The ruling highlighted the need for careful scrutiny of agreements that may substantially lessen competition, even in markets with a limited number of participants.

Cryoperl Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established