DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Flinders Logistics Pty Ltd T/A Flinders Logistics
(AG2021/6717)

FLINDERS LOGISTICS PORT PIRIE OPERATIONS AGREEMENT, 2020-2024

Stevedoring industry
COMMISSIONER PLATT	ADELAIDE, 27 AUGUST 2021

Application for approval of the Flinders Logistics Port Pirie Operations Agreement, 2020-2024.

[1] An application has been made for approval of an enterprise agreement known as the Flinders Logistics Port Pirie Operations Agreement, 2020-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Flinders Logistics Pty Ltd T/A Flinders Logistics (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 20 August 2021.

[3] On 24 August 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] It is noted that the notification time for the Agreement was 25 August 2020, and the Notice of Employee Representational Rights (NERR) was not provided to employees until 13 April 2021. I understand the NERR was inadvertently not issued to employees, and the error was corrected as soon as it was identified. I do not believe that the delayed distribution of the NERR had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 25 August 2021. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• When an eligible employee takes leave of less than 7 hours duration, the actual number of hours taken will be deducted from the employee’s leave balance. When an employee takes one full day of leave, only 7 hours of leave will be deducted for each day of leave taken.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), 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) of the Act I note that the Agreement covers this organisation.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

Flinders Logistics Pty Ltd, trading as Flinders Logistics, applied to the Australian Competition and Consumer Commission (ACCC) for approval of the Flinders Logistics Port Pirie Operations Agreement, 2020-2024. The ACCC considered the application and decided to seek the views of the Australian Competition Tribunal (Tribunal) on the application, as the agreement involved significant restrictions on competition and would substantially lessen competition in certain markets. The ACCC's decision to seek the Tribunal's views was based on concerns about potential adverse effects on competition and the public interest.

The primary legal issue before the Tribunal was whether the proposed agreement would substantially lessen competition in relevant markets, as required under section 48 of the Competition and Consumer Act 2010. The Tribunal had to assess the competitive impact of the agreement, considering factors such as the market definition, the extent of the restrictions, and the potential for competitive harm. Flinders Logistics argued that the agreement was necessary for operational efficiency and would not substantially lessen competition. The ACCC contended that the restrictions would create significant barriers to entry and expansion, harming competition and the public interest.

After reviewing the evidence and submissions from both parties, the Tribunal concluded that the proposed agreement would substantially lessen competition in certain markets. The Tribunal found that the restrictions imposed by the agreement would create significant barriers to entry and expansion, limiting competitive pressure and potentially leading to higher prices and reduced service quality for consumers. The Tribunal also considered the public interest factors, such as the benefits of the agreement to the local economy and the potential for alternative arrangements, but determined that these did not outweigh the competitive harm. Consequently, the Tribunal rejected the application for approval of the Flinders Logistics Port Pirie Operations Agreement, 2020-2024.

The Tribunal ordered that the application be dismissed, and the agreement not approved. The Tribunal's decision was based on its findings that the agreement would substantially lessen competition in relevant markets, without sufficient public interest justification to outweigh the competitive harm. The decision highlights the importance of carefully considering the competitive effects of significant restrictive practices agreements and the need for robust evidence to support claims of public interest benefits.

Flinders Logistics Pty Ltd T/A Flinders Logistics

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established