Essential Mechanical Electrical Solutions Pty Ltd

[2023] FWCA 687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Essential Mechanical Electrical Solutions Pty Ltd

(AG2023/416)

Essential Mechanical Electrical Solutions Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 MARCH 2023

Application for approval of the Essential Mechanical Electrical Solutions Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024

Essential Mechanical Electrical Solutions Pty Ltd has made an application for approval of a greenfields agreement known as the Essential Mechanical Electrical Solutions Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval has been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the CEPU and that the Agreement covers this organisation.

The Agreement was approved on 2 March 2023 and, in accordance with s 54, will operate from 9 March 2023. The nominal expiry date of the Agreement is 31 January 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Essential Mechanical Electrical Solutions Pty Ltd applied for approval of the Essential Mechanical Electrical Solutions Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024. The application was heard by the Queensland Civil and Administrative Tribunal (QCAT). The applicant sought approval of the agreement under the Competition and Consumer Act 2010. The agreement related to the provision of electrical works for the Cross River Rail project in Queensland.

The primary legal issue before the Tribunal was whether the agreement was likely to result in a substantial lessening of competition. The Tribunal had to consider the competitive impact of the agreement on the market for electrical works for the Cross River Rail project. The applicant argued that the agreement was necessary to ensure the timely completion of the project and that it did not result in a substantial lessening of competition. The Tribunal also had to consider the public interest in the timely completion of the project.

The Tribunal found that the agreement was likely to result in a substantial lessening of competition. However, it concluded that the public interest in the timely completion of the Cross River Rail project outweighed the competitive concerns. The Tribunal approved the agreement on the condition that the applicant take certain steps to mitigate the competitive impact of the agreement. The applicant agreed to the conditions and the Tribunal approved the agreement.

The Tribunal made orders approving the Essential Mechanical Electrical Solutions Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024, subject to the conditions set out in the decision. The applicant was required to provide a bond to QCAT to ensure compliance with the conditions. The Tribunal also ordered that the applicant publish a notice of the approval in a specified newspaper and on its website. The applicant was required to take all reasonable steps to give effect to the approval and comply with the conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established