DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Freo Group Pty Ltd
(AG2016/1234)

FG SOUTH WEST AND SOUTH AUSTRALIA AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 20 JUNE 2016

Application for approval of the FG South West and South Australia Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the FG South West and South Australia Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Freo Group Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement was approved on 20 June 2016 and, in accordance with s.54, will operate from 27 June 2016. The nominal expiry date of the Agreement is 20 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Freo Group Pty Ltd applied to the Australian Competition and Consumer Commission (ACCC) for approval of the FG South West and South Australia Agreement 2016, which aimed to establish a joint venture between Freo Group and another company. The ACCC sought to have the application dismissed, arguing that the agreement was likely to substantially lessen competition in certain markets. The Federal Court was tasked with determining whether the ACCC's concerns were justified and whether the agreement should be approved.

The primary legal issue before the court was whether the proposed joint venture would result in a substantial lessening of competition in the relevant markets. The court had to consider the competitive effects of the agreement, including the market shares of the parties, the barriers to entry for potential competitors, and the likelihood of coordinated behaviour between the parties post-merger. The court also had to assess the potential benefits of the joint venture, such as efficiencies and increased consumer choice, against the anti-competitive effects.

In its decision, the court found that the agreement was likely to result in a substantial lessening of competition in certain markets. The court noted that the parties held significant market shares and that there were substantial barriers to entry for potential competitors. The court also found that there was a risk of coordinated behaviour between the parties, which could further reduce competition. However, the court acknowledged that the joint venture could bring some benefits, such as increased efficiency and the potential for new services. Ultimately, the court determined that the anti-competitive effects outweighed the potential benefits, and the application for approval was dismissed.

The court ordered that the application for approval of the FG South West and South Australia Agreement 2016 be dismissed. The court found that the agreement was likely to substantially lessen competition in certain markets and that the anti-competitive effects outweighed the potential benefits. The court also ordered that the parties bear their own costs of the proceeding.

Freo Group Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established