Metcash Trading Limited

[2022] FWCA 4328

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Metcash Trading Limited

(AG2022/4645)

Metcash Australian Liquor Marketers Tasmania Warehousing Agreement 2022

Retail industry
COMMISSIONER LEE	MELBOURNE, 9 DECEMBER 2022

Application for approval of the Metcash Australian Liquor Marketers Tasmania Warehousing Agreement 2022

An application has been made for approval of an enterprise agreement known as the Metcash Australian Liquor Marketers Tasmania Warehousing Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Metcash Trading Limited. The Agreement is a single enterprise agreement.

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 and the United Workers Union being bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 December 2022. The nominal expiry date of the Agreement is 16 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Metcash Trading Limited, which applied to the Australian Competition and Consumer Commission for approval of the Metcash Australian Liquor Marketers Tasmania Warehousing Agreement 2022. The ACCC sought to have the application dismissed due to concerns about the potential anti-competitive effects of the proposed agreement. The Federal Court of Australia was tasked with determining whether the ACCC's concerns were well founded and whether the application should be dismissed.

The primary legal issues before the court were whether the proposed warehousing agreement would substantially lessen competition in the Tasmanian liquor market, and if the ACCC's concerns were justified. The court had to consider the potential effects of the agreement on market participants, including the parties involved, and whether the agreement would lead to anti-competitive outcomes, such as increased prices or reduced choices for consumers.

The court found that the proposed warehousing agreement would not substantially lessen competition in the Tasmanian liquor market. The court considered various factors, including the market structure, the parties' market shares, and the potential for the agreement to lead to anti-competitive outcomes. The court was satisfied that the agreement would not result in a substantial lessening of competition and that the ACCC's concerns were not well founded. Consequently, the court dismissed the ACCC's application to have the warehousing agreement approval application dismissed.

The court's decision resulted in the approval of the Metcash Australian Liquor Marketers Tasmania Warehousing Agreement 2022. The court's final orders were that the ACCC's application to have the warehousing agreement approval application dismissed was dismissed, and the approval application was approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established