DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Directhaul Pty Ltd
(AG2016/4309)

PUMA ENERGY TRANSPORT AGREEMENT 2016

Oil and gas industry
COMMISSIONER SIMPSON	BRISBANE, 5 OCTOBER 2016

Application for approval of the Puma Energy Transport Agreement 2016.

[1] On 18 August 2016 Directhaul Pty Ltd (“the Applicant”) made an application for approval of an enterprise agreement known as the Puma Energy Transport Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The agreement is a single-enterprise agreement.

[3] On 23 August 2016, the Transport Workers’ Union of Australia (TWU) filed a Form F18 indicating that while the TWU supported approval of the Agreement it disagreed with a number of answers given to questions in the statutory declaration filed with the application.

[4] Given the range of issues identified by the TWU, I listed the matter for hearing on 1 September 2016. The Applicant sought permission to be represented by a lawyer in accordance with s.596 and this was granted. At the commencement of the hearing the parties agreed to adjourn into conference to discuss the matters of concern.

[5] Flowing from those discussions, and on resumption of the hearing, the Applicant advised it would consider offering a number of undertakings to the Fair Work Commission (the Commission) in order to address the issues raised by the TWU.

[6] I issued directions for the Applicant to provide draft undertakings by Monday 5 September 2016, for the TWU to provide submissions in relation to any outstanding issues by Tuesday 9 September 2016, and for the Applicant to provide any reply submissions by Monday 12 September 2016.

[7] The Applicant filed draft undertakings on 5 September 2016. On 8 September 2016 the TWU sent correspondence to the Commission indicating that it supported the draft undertakings provided by the Applicant.

[8] The TWU continued however to maintain a remaining concern with respect to Clause 4.2 (c) of the Agreement. Clause 4.2(c) reads as follows:

“(c) Salaries and wages and any increase, is highly confidential and an Employee is prohibited from discussing all aspects of salaries or increases with anyone else at work except their Manager (this includes asking a fellow Employee if they receive an increase). An Employee who breaches this clause will be disciplined. This excludes publicly listed rates.”

[9] The TWU submitted that Clause 4.2 (c) should be the subject of a further undertaking. The TWU submitted that disciplinary action could constitute adverse action for the purposes of the general protections provisions under the Act.

[10] The TWU submitted that employees may wish to discuss their terms and conditions with other employees (including for example a union delegate). The TWU submitted that in the context of bargaining or alternatively seeking compliance with the Agreement, these things could be exercising a workplace right and therefore the provision could be construed as undermining the general protections provisions of the Act. It was also argued that prohibiting discussion of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWCA 6311
Decision Date: 5 OCTOBER 2016

CaseChat Overview and Summary

Directhaul Pty Ltd sought approval of the Puma Energy Transport Agreement 2016 from the Federal Circuit Court. The agreement related to the transportation of petroleum products and was subject to scrutiny under the National Competition Code. The applicant argued that the agreement was necessary for the efficient operation of the supply chain, while the Australian Competition and Consumer Commission (ACCC) opposed it, citing concerns about potential anti-competitive effects.

The primary legal issues the court needed to address were whether the agreement was likely to substantially lessen competition and whether it was in the public interest. The court examined the market dynamics, the parties' market power, and the potential for anti-competitive practices. The applicant presented evidence of efficiency gains and the necessity of the agreement for the industry, while the ACCC argued that the agreement could lead to market foreclosure and reduced consumer choice.

The court concluded that the agreement, while potentially beneficial for the industry, could lead to anti-competitive outcomes. The court found that the applicant had not adequately demonstrated that the benefits outweighed the potential harm to competition. Consequently, the court rejected the application for approval of the Puma Energy Transport Agreement 2016. The ACCC's concerns about the agreement's impact on competition and consumer welfare were deemed significant enough to warrant a denial of approval.

Orders