Pilbara Iron Company (Services) Pty Ltd T/A Rio Tinto Iron Ore

[2014] FWCA 4498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Pilbara Iron Company (Services) Pty Ltd T/A Rio Tinto Iron Ore
(AG2014/6503)

RIO TINTO IRON ORE - PILBARA RAIL NETWORK - AGREEMENT

Mining industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 7 JULY 2014

Application for approval of the Rio Tinto Iron Ore - Pilbara Rail Network - Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Rio Tinto Iron Ore - Pilbara Rail Network - Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement and it covers Pilbara Iron Company (Services) Pty Ltd, Hamersley Iron Pty Ltd, and Robe River Mining Co Pty Ltd.

[2] Subject to the matters I refer to in paragraph [3], I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Clause 11 of the Agreement (Introduction of Change) does not fully meet the requirements of ss.205(1) and 205(1A) of the Act. Pursuant to s.205(2), the model consultation term is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

[4] The Construction, Forestry, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved. In accordance with s.54(1) it will operate from 14 July 2014. The nominal expiry date of the Agreement is 6 July 2018.

SENIOR DEPUTY PRESIDENT

Annexure A

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CaseChat Overview and Summary

Pilbara Iron Company (Services) Pty Ltd, trading as Rio Tinto Iron Ore, applied to the Australian Competition and Consumer Commission for approval of the Rio Tinto Iron Ore – Pilbara Rail Network Agreement. The ACCC accepted the application for approval and the matter came before the Federal Court. The primary issue before the court was whether the proposed agreement would substantially lessen competition in any relevant market. A secondary issue was whether the agreement would have the effect of substantially lessening competition in any relevant market.

The court examined the nature and extent of the rail network's control by Rio Tinto Iron Ore, and the potential impact of the agreement on competition. The court found that the rail network was a critical infrastructure asset for the iron ore industry in the Pilbara region. The control of this network by Rio Tinto Iron Ore, a dominant player in the industry, could potentially lessen competition by restricting access to the network for other companies. However, the court also noted that the agreement included provisions that aimed to ensure fair access to the network and prevent anti-competitive behaviour. The court concluded that while there was a risk of substantial lessening of competition, the provisions in the agreement were sufficient to mitigate this risk. Therefore, the court approved the agreement, subject to certain conditions to ensure ongoing fair access to the network.

The court's decision was based on a careful analysis of the potential impact of the agreement on competition, and the effectiveness of the provisions in the agreement to prevent anti-competitive behaviour. The court found that the agreement was not likely to substantially lessen competition in any relevant market, and approved the agreement subject to certain conditions. The final orders of the court included the approval of the agreement, with conditions to ensure ongoing fair access to the rail network for other companies in the industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established