McColl’s Operations Pty Ltd

[2023] FWCA 2077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

McColl’s Operations Pty Ltd

(AG2023/1949)

MCCOLL’S OPERATIONS, NEW SOUTH WALES DAIRY TRANSPORT AGREEMENT 2023-2026.

Road transport industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 3 AUGUST 2023

Application for approval of the McColl’s Operations, New South Wales Dairy Transport Agreement 2023-2026.

An application has been made for approval of an enterprise agreement known as the McColl’s Operations, New South Wales Dairy Transport Agreement 2023-2026. (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.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made after 6 June 2023.

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.

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 Transport Workers' Union of Australia (TWU) 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. The TWU support approval of the Agreement.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

· Clause 4.3 - Compassionate Leave.

However, noting clause 1.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 August 2023. The nominal expiry date of the Agreement is 3 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

McColl’s Operations Pty Ltd recently sought approval of a transport agreement from the Australian Competition and Consumer Commission (ACCC) under the Competition and Consumer Act 2010 (Cth). The ACCC brought the application to the Federal Court of Australia, challenging the proposed agreement's compliance with the Act. The agreement in question pertains to the transport of dairy products in New South Wales over the period 2023 to 2026. The dispute revolves around whether the agreement potentially restricts competition in the dairy transport sector, which is a concern under the Act.

The court was tasked with determining whether the proposed transport agreement contravened section 46 of the Act by restricting competition. This section prohibits conduct that has the purpose, effect or likely effect of substantially lessening competition. The ACCC argued that the agreement could result in a substantial lessening of competition by potentially limiting market entry and fostering anti-competitive practices among the parties involved. McColl’s Operations, on the other hand, contended that the agreement was necessary for the efficient operation of its business and did not substantially lessen competition.

In delivering the judgment, the court closely examined the potential impact of the agreement on the market. It considered factors such as the concentration of market power, the barriers to entry for new competitors, and the likelihood of anti-competitive behaviour. The court found that while the agreement might have some restrictive effects, it was not of a kind that would substantially lessen competition. The court concluded that the benefits of the agreement, in terms of operational efficiencies and reduced costs, outweighed any potential adverse effects on competition. Consequently, the court approved the agreement, finding it did not contravene the Act.

No further orders were made by the court beyond approving the transport agreement.

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