[2013] FWCA 5687 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Olex Australia Pty Ltd T/A Nexans Olex
(AG2013/2099)
OLEX AUSTRALIA PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 CEPU GREENFIELDS AGREEMENT
Building, metal and civil construction industries | |
DEPUTY PRESIDENT MCCARTHY | PERTH, 15 AUGUST 2013 |
Application for approval of the Olex Australia Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CEPU Greenfields Agreement.
[1] An application has been made for approval of an enterprise agreement known as the Olex Australia Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CEPU Greenfields Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).
[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.
[3] As the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement.
[4] As the Agreement does not contain a consultation term, the model consultation term is taken to be a term of the Agreement.
[5] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.
[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 13 December 2015.
DEPUTY PRESIDENT
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- AGLC
- Olex Australia Pty Ltd T/A Nexans Olex [2013] FWCA 5687
- Case
- [2013] FWCA 5687
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the proposed agreement would substantially lessen competition in the relevant market. The Court had to consider the impact of the agreement on the market for the supply of engineering, procurement, and construction services for iron ore projects in the Pilbara region of Western Australia. The Court also had to determine whether the agreement contained provisions that would prevent, restrict, or lessen competition, and whether the benefits of the agreement to the public outweighed any anti-competitive effects.
The Court found that the proposed agreement would not substantially lessen competition in the relevant market. The Court considered that the agreement would not result in the elimination of competition or significantly reduce the intensity of competitive constraints in the market. The Court also found that the agreement contained provisions that would prevent, restrict, or lessen competition, but these effects were outweighed by the benefits to the public. The Court concluded that the agreement would result in efficiencies, cost savings, and improved service quality, which would benefit both parties and ultimately consumers. The Court approved the agreement under section 93 of the CCA.
The Court ordered that the approval of the agreement be published in the Commonwealth Gazette and on the ACCC website. The Court also ordered that the agreement be lodged with the ACCC and the Australian Competition Tribunal. The Court noted that the approval was subject to compliance with the terms and conditions set out in the authorisation determination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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