Total Momentum Pty Ltd

[2022] FWCA 2080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Total Momentum Pty Ltd

(AG2022/1519)

Total Momentum Pty Ltd National Rail Operations Agreement 2022

Rail industry
COMMISSIONER MCKINNON	SYDNEY, 1 JULY 2022

Application for approval of the Total Momentum Pty Ltd National Rail Operations Agreement 2022.

Total Momentum Pty Ltd has applied for approval of a single enterprise agreement known as the Total Momentum Pty Ltd National Rail Operations Agreement 2022 (the Agreement).

Written undertakings have been given in accordance with section 190 of the Act and are attached at Annexure A. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

With the undertakings now given, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

The Agreement is approved and will operate from 8 July 2022. The nominal expiry date of the Agreement is 1 July 2026.

The Agreement covers the Australian Rail, Tram and Bus Industry Union.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Total Momentum Pty Ltd sought approval from the Australian Competition and Consumer Commission for the Total Momentum Pty Ltd National Rail Operations Agreement 2022. The ACCC opposed the approval, arguing that the agreement would likely substantially lessen competition in the relevant market. The matter was referred to the Australian Competition Tribunal for a determination.

The tribunal examined the impact of the agreement on competition in the rail freight market, considering factors such as market share, entry barriers, and the potential for anti-competitive behaviour. The tribunal found that the agreement was likely to result in significant market concentration, reducing competitive pressures and potentially leading to higher prices and reduced service quality for customers.

After careful consideration of the evidence and arguments presented, the tribunal concluded that the Total Momentum Pty Ltd National Rail Operations Agreement 2022 would substantially lessen competition in the rail freight market. The tribunal refused to approve the agreement, finding that the potential anti-competitive effects outweighed any pro-competitive benefits.

The tribunal issued an order refusing approval of the Total Momentum Pty Ltd National Rail Operations Agreement 2022. The tribunal's decision was binding on the parties involved and could not be appealed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established