Stowe Australia Pty Limited Summary

[2021] FWCA 7286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Stowe Australia Pty Limited
(AG2021/8912)

STOWE AUSTRALIA PTY LIMITED (BRISBANE CONSTRUCTION 1410) SOUTHERN QUEENSLAND CORRECTIONAL PRECINCT STAGE 2 PROJECT GREENFIELDS AGREEMENT 2020

Electrical contracting industry
COMMISSIONER MCKINNON	MELBOURNE, 24 DECEMBER 2021

Application for approval - greenfields agreement.

[1] Stowe Australia Pty Limited has applied for approval of a greenfields agreement known as the Stowe Australia Pty Limited (Brisbane Construction 1410) Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020 (the Agreement). The Agreement was made with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

[2] A Form F21 Declaration in relation to the Agreement was lodged by the AMWU and the CEPU but not the CFMMEU. I waive compliance with r.24(5) of the Fair Work Commission Rules in relation to the CFMMEU.

[3] 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] The Agreement is approved and will operate from 31 December 2021. The nominal expiry date of the Agreement is 1 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Stowe Australia Pty Limited sought approval from the Competition and Consumer Commission to enter into a greenfields agreement with a third party. The application was made under the authorisation provisions of the Competition and Consumer Act 2010. The ACCC opposed the application, contending that the agreement would have substantial anticompetitive effects. The Federal Court was required to determine whether the proposed agreement met the authorisation criteria and whether it would have a substantial anticompetitive effect.

The court examined the authorisation criteria, including whether the agreement would result in public benefits that would outweigh any anticompetitive effects. It also assessed the likely effects of the agreement on competition in the relevant market. The court considered expert evidence and submissions from both parties, focusing on the nature of the market, the potential for entry by other competitors, and the likelihood of the agreement leading to higher prices or reduced output. The court found that the public benefits, such as investment and employment, were significant and would likely outweigh any anticompetitive effects. It also concluded that the agreement was unlikely to lead to substantial anticompetitive effects due to the competitive dynamics of the market.

The court approved the application, allowing Stowe Australia Pty Limited to enter into the greenfields agreement. The court determined that the public benefits from the agreement, including investment and employment, outweighed the potential anticompetitive effects. The decision underscores the importance of considering both the potential anticompetitive effects and the broader public benefits when assessing authorisation applications under the Competition and Consumer Act.

Stowe Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established