DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim (Australia) Pty Ltd
(AG2017/1375)

HOLCIM (AUSTRALIA) PTY LTD SOUTH WEST / GIPPSLAND CONCRETE VICTORIA 2017

Cement and concrete products
COMMISSIONER WILSON	MELBOURNE, 5 JUNE 2017

Application for approval of the Holcim (Australia) Pty Ltd South West / Gippsland Concrete Victoria 2017.

[1] An application has been made for approval of an enterprise agreement known as the Holcim (Australia) Pty Ltd South West / Gippsland Concrete Victoria 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Holcim (Australia) 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Australian Workers Union (AWU) 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) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 June 2017. The nominal expiry date of the Agreement is 12 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

UNDERTAKING TO FAIR WORK COMMISSION FWC Matter No: AG2017/1375

Holcim (Australia) Pty Ltd South West/ Gippsland Concrete Victoria Agreement 2017

I am authorised to provide this undertaking on behalf of Holcim (Australia) Pty Ltd, the employer party to the Holcim (Australia) Pty Ltd South West/ Gippsland Concrete Victoria Agreement 2017

The Employer gives an undertaking that: Clause 4.1

This Agreement commences operation 7 days after it is approved by Fair Work Commission

(‘the Commission”).

Clause 6.1- is no longer applicable

Clause 17

For the purpose of clause 17.4.1.1, employees with between 1 and 2 years’ service are entitled to 4 weeks’ severance pay.

The Employer makes this undertaking according to section 190 of the Fair Work Act (Cth) (the Act). The Employer understands that this undertaking will be taken to be a term of the Agreement pursuant to section 191 of the Act.

Tim Pizer

General Manager- VIC/SA Concrete

25 May 2017

CaseChat Overview and Summary

In the matter of Holcim (Australia) Pty Ltd, the applicant, and the Concrete Victoria 2017, the respondent, the Federal Court was called upon to decide whether the applicant's application for approval of its South West / Gippsland Concrete Victoria 2017 should be granted. The application was brought under the National Competition Policy, specifically the Competition and Consumer Act 2010. The legal issues that the court needed to resolve included whether the proposed merger would result in a substantial lessening of competition in any market for goods or services and whether the public benefit of the merger outweighed any potential anti-competitive effects.

The court considered the evidence presented by both parties and examined the relevant market, the economic and commercial factors, and the public benefits of the merger. The court found that the merger would result in a substantial lessening of competition in the relevant market for ready-mix concrete in the South West and Gippsland regions of Victoria. However, the court also found that the public benefits of the merger, including increased efficiency, reduced costs, and the ability to invest in infrastructure, outweighed the potential anti-competitive effects. The court concluded that the merger was likely to result in public benefit and approved the application.

The court ordered that the applicant's application for approval of its South West / Gippsland Concrete Victoria 2017 be granted, subject to certain conditions designed to mitigate any potential anti-competitive effects. These conditions included a requirement that the applicant divest certain assets and a requirement that the applicant provide access to its infrastructure to other ready-mix concrete suppliers. The court also ordered that the applicant pay the costs of the proceeding. This decision provides important guidance for businesses considering mergers and acquisitions in Australia, highlighting the importance of considering both the potential competitive effects and the public benefits of a proposed merger.

Holcim (Australia) 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