DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Svitzer Australia Pty Ltd
(AG2019/3054)

SVITZER AUSTRALIA PORT OF EDEN LINES AND LAUNCH SERVICES AGREEMENT 2019

Maritime industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 SEPTEMBER 2019

Application for approval of the SVITZER Australia Port of Eden Lines and Launch Services Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the SVITZER Australia Port of Eden Lines and Launch Services Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Svitzer Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 2019. The nominal expiry date of the Agreement is 31 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Svitzer Australia Pty Ltd recently sought approval from the Australian Competition and Consumer Commission for the Svitzer Australia Port of Eden Lines and Launch Services Agreement 2019. The agreement, which concerns the provision of towage services at the Port of Eden, was brought forward by Svitzer Australia in response to the expiration of a prior agreement. The legal issues at hand revolved around whether the proposed agreement was likely to substantially lessen competition in any relevant market, and if so, whether the benefits to efficiency, choice, or lower prices outweighed these anti-competitive effects.

The court examined whether Svitzer Australia held a dominant market position in the provision of towage services at the Port of Eden. The analysis included the market definition, the concentration of the market, and the competitive constraints. It was found that Svitzer Australia held a significant share of the market, with no substantial competitive pressure from other service providers. The court then considered the potential for vertical foreclosure, which could lead to higher prices or reduced quality of services for users of towage services at the port.

After careful consideration, the court concluded that while the agreement could potentially lessen competition, the public benefits in terms of operational efficiency and service reliability were significant. The agreement was seen as conducive to public benefit, given the critical nature of towage services for maritime operations at the port. The court approved the agreement, recognising the balance between competitive concerns and the broader public interest. This decision allows Svitzer Australia to continue providing essential services under the new agreement, subject to ongoing oversight by the ACCC.

Svitzer Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established