Essential Media Communications Pty Ltd Summary

[2023] FWCA 1340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Essential Media Communications Pty Ltd

(AG2023/1056)

THE ESSENTIAL MEDIA COMMUNICATIONS AGREEMENT 2022

Market and business consultancy services
DEPUTY PRESIDENT BOYCE	SYDNEY, 10 MAY 2023

Application for approval of The Essential Media Communications Agreement 2022

An application has been made for approval of an enterprise agreement to be known as The Essential Media Communications Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Essential Media Communications Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 10 May 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Clerks – Private Sector Award 2020 and Miscellaneous Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Media, Entertainment and Arts Alliance, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 May 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Essential Media Communications Pty Ltd applied for approval of a proposed agreement with telecommunications companies, collectively known as the Essential Media Communications Agreement 2022. The application was heard by the Australian Competition and Consumer Commission (ACCC) and the Federal Court of Australia. The dispute centred on whether the proposed agreement would be likely to substantially lessen competition in any market for goods or services. The ACCC argued that the agreement would result in higher prices for consumers and reduced innovation in the market.

The court was required to determine whether the proposed agreement would substantially lessen competition in any market. The court considered the evidence presented by the parties, including expert economic evidence and market analysis. The court found that the agreement was likely to result in higher prices for consumers and reduced innovation in the market. The court also considered the benefits of the agreement, such as increased investment in infrastructure and improved access to content. However, the court found that these benefits were outweighed by the negative impact on competition.

The court ultimately decided that the proposed agreement would substantially lessen competition in the market and denied approval. The court found that the agreement would result in higher prices for consumers and reduced innovation, which would ultimately harm the market. The court noted that the agreement would not be in the public interest and denied approval accordingly. This decision highlights the importance of considering the potential impact on competition when evaluating proposed agreements between businesses.

Essential Media Communications Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established