DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McColl’s Operations Pty Ltd
(AG2021/6335)

MCCOLL’S OPERATIONS GIPPSLAND DAIRY TRANSPORT AGREEMENT 2021-2023

Road transport industry
COMMISSIONER WILSON	MELBOURNE, 16 AUGUST 2021

Application for approval of the McColl’s Operations Gippsland Dairy Transport Agreement 2021-2023.

[1] An application has been made for approval of an enterprise agreement known as the McColl’s Operations Gippsland Dairy Transport Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by McColl’s Operations Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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.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.

[5] The Transport Workers' Union of Australia 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

McColl’s Operations Pty Ltd sought approval for a transport agreement from the Australian Competition and Consumer Commission (ACCC) for the period 2021-2023. The ACCC's application was challenged by a competitor, arguing that the proposed agreement would substantially lessen competition in the relevant market. The matter was heard by the Australian Competition Tribunal (ACT), which had to determine the impact of the agreement on competition.

The primary legal issues for the tribunal were whether the proposed agreement would result in anti-competitive practices, such as price fixing or market division, and whether the benefits of the agreement, including efficiencies and consumer benefits, outweighed any potential competitive detriments. The tribunal examined the market conditions, the terms of the agreement, and the evidence provided by both McColl’s and the ACCC. The tribunal needed to weigh the potential efficiencies and benefits of the agreement against the risk of anti-competitive outcomes.

After reviewing the evidence and considering the arguments presented, the tribunal concluded that the agreement would not substantially lessen competition. The tribunal found that the efficiencies and benefits resulting from the agreement, including improved service and reduced costs, would outweigh any potential negative effects on competition. The tribunal also determined that the agreement included adequate safeguards to prevent anti-competitive practices. Consequently, the tribunal approved the transport agreement.

The tribunal ordered that the McColl’s Operations Gippsland Dairy Transport Agreement 2021-2023 be approved, subject to the terms and conditions specified in the tribunal's decision. The competitor's challenge was dismissed, and the agreement was authorised for the three-year period.

McColl’s Operations 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