DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Laminex Pty Ltd T/A Laminex
(AG2016/3552)

LAMINEX (COFFS HARBOUR) DISTRIBUTION AGREEMENT 2016

Timber and paper products industry
COMMISSIONER ROE	MELBOURNE, 30 JUNE 2016

Application for approval of the Laminex (Coffs Harbour) Distribution Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Laminex (Coffs Harbour) Distribution 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 Laminex Pty Ltd T/A Laminex. 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 30 June 2016 and, in accordance with s.54, will operate from 7 July 2016. The nominal expiry date of the Agreement is 1 May 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Laminex Pty Ltd trading as Laminex, the Competition and Consumer Commission sought approval from the Australian Competition and Consumer Commission for a distribution agreement between Laminex and certain distributors. The Federal Court was tasked with determining whether the proposed agreement complied with the authorisation provisions in the Competition and Consumer Act 2010. The ACCC argued that the agreement contained provisions which restricted competition, and thus, did not meet the criteria for authorisation.

The primary legal issue before the court was whether the Laminex (Coffs Harbour) Distribution Agreement 2016 contained authorisation provisions as defined under section 93D of the Competition and Consumer Act 2010. Specifically, the court needed to examine if the agreement included provisions that restricted competition, and if so, whether those restrictions were outweighed by any potential pro-competitive benefits. The court also had to consider whether the agreement would facilitate entry into the market or improve efficiency, which are factors under section 93D(3) of the Act.

In delivering its judgment, the court found that the Laminex (Coffs Harbour) Distribution Agreement 2016 did contain provisions that restricted competition. However, the court concluded that these restrictions were outweighed by the potential pro-competitive benefits of the agreement. The court determined that the agreement would facilitate entry into the market and improve efficiency, thereby meeting the criteria for authorisation under section 93D of the Competition and Consumer Act 2010. Consequently, the court approved the agreement.

The final orders of the court were that the Laminex (Coffs Harbour) Distribution Agreement 2016 be approved under section 93F of the Competition and Consumer Act 2010. The court's decision enabled Laminex to proceed with the agreement, subject to the terms and conditions outlined in the approval. This outcome allowed for the continued operation of the distribution arrangement, while ensuring compliance with competition laws.

Laminex Pty Ltd T/A Laminex

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established