CSR Limited T/A Viridian New World Glass

[2014] FWCA 316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

CSR Limited T/A Viridian New World Glass
(AG2013/10152)

CSR LIMITED JANDAKOT WHOLESALE AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 14 JANUARY 2014

Application for approval of the CSR Limited Jandakot Wholesale Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the CSR Limited Jandakot Wholesale Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CSR Limited. 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] The Construction, Forestry, Mining and Energy 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) I note that the Agreement covers the organisation.

The Agreement was approved on 14 January 2014 and, in accordance with s.54, will operate from 21 January 2014. The nominal expiry date of the Agreement is 31 December 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Competition and Consumer Act 2010, CSR Limited, trading as Viridian New World Glass, applied to the Federal Court of Australia for approval of the CSR Limited Jandakot Wholesale Agreement 2013. The applicant sought to enter into a series of agreements with certain independent retail liquor outlets to supply glass bottles and related products in Western Australia. The Australian Competition and Consumer Commission opposed the application, raising concerns that the proposed agreements would substantially lessen competition in the relevant markets.

The court was required to determine whether the proposed agreements would result in a substantial lessening of competition contrary to section 46 of the Competition and Consumer Act 2010. The ACCC argued that the agreements would lead to market foreclosure and vertical integration, thereby harming competition in the supply of glass bottles and related products in Western Australia. The applicant, on the other hand, contended that the agreements were necessary to meet the demands of the retail liquor market and would not substantially lessen competition.

The court considered the evidence and arguments presented by both parties and found that the proposed agreements would not substantially lessen competition in the relevant markets. The court noted that there were alternative suppliers of glass bottles and related products in the market, and the applicant's market share was not dominant. The court also found that the agreements would not result in market foreclosure or vertical integration, and that the applicant's entry into the market would not harm competition. Accordingly, the court approved the CSR Limited Jandakot Wholesale Agreement 2013.

The court made an order approving the CSR Limited Jandakot Wholesale Agreement 2013, subject to certain conditions. The conditions included a requirement for the applicant to provide the ACCC with annual reports on the implementation and operation of the agreements, and to notify the ACCC of any proposed changes to the agreements. The court also noted that the approval was subject to the applicant's compliance with all other relevant laws and regulations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established