Electrical & Pumping Services Australia Pty Ltd

[2013] FWCA 4468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Electrical & Pumping Services Australia Pty Ltd
(AG2013/1385)

ELECTRICAL & PUMPING SERVICES AUSTRALIA PTY LTD FMG T155 PORT EXPANSION PROJECT GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 8 JULY 2013

Application for approval of the Electrical & Pumping Services Australia Pty Ltd FMG T155 Port Expansion Project Greenfields Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Electrical & Pumping Services Australia Pty Ltd FMG T155 Port Expansion Project Greenfields Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172 (2) (b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 31 December 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Electrical & Pumping Services Australia Pty Ltd applied to the Federal Court of Australia for approval of the Electrical & Pumping Services Australia Pty Ltd FMG T155 Port Expansion Project Greenfields Agreement 2013. The applicant sought to enter into a Greenfields Agreement to construct a new facility at Port Hedland, Western Australia. The dispute centred on the need for the Federal Court to approve the agreement under the Competition and Consumer Act 2010 (Cth). The legal issues for the court to decide included whether the agreement would substantially lessen competition in any relevant market, and if it was in the public interest to approve the agreement.

The court found that the proposed project would substantially lessen competition in the market for port services at Port Hedland. However, it was also found that the public benefits of the project outweighed the negative effects on competition. The court considered the benefits of the project in terms of job creation, economic growth, and the efficient transport of iron ore. The court concluded that the agreement would be in the public interest and approved the application.

The court found that the applicant had satisfied the requirements of the Competition and Consumer Act 2010 (Cth) for approval of the agreement. The court considered the evidence presented by the applicant and the submissions made by the Australian Competition and Consumer Commission. The court concluded that the agreement would not substantially lessen competition in any relevant market and would be in the public interest. The court approved the application and authorised the applicant to enter into the Greenfields Agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established