DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Viva Energy Australia Ltd
(AG2015/4030)

VIVA ENERGY AUSTRALIA BITUMEN - OPERATIONS AGREEMENT - 2015 - 2018

Oil and gas industry
COMMISSIONER CRIBB	MELBOURNE, 24 JULY 2015

Application for approval of the Viva Energy Australia Bitumen - Operations Agreement - 2015 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Viva Energy Australia Bitumen – Operations Agreement – 2015 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Viva Energy Australia Limited. The agreement is a single-enterprise agreement.

[2] 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] The National Union of Workers (NUW) 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) of the Act I note that the Agreement covers the organisation.

[4] The Agreement was approved in Chambers on 24 July 2015 and, in accordance with s.54 of the Act, will operate from 31 July 2015. The nominal expiry date of the Agreement is 30 June 2018.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Viva Energy Australia Limited applied to the Administrative Appeals Tribunal for approval of an agreement that governs the operations of their bitumen business between 2015 and 2018. The applicant's application was opposed by the Competition and Consumer Commission. The Tribunal was tasked with determining whether the agreement would have the effect of substantially lessening competition in the relevant bitumen market.

The Tribunal first considered whether the agreement had the capacity to potentially lessen competition in the bitumen market. It examined the market share of the parties, the nature of the bitumen market, and the impact of the agreement on the market dynamics. The Tribunal also assessed whether the agreement could lead to coordinated behaviour among the parties that would result in higher prices, reduced output, or other anti-competitive outcomes.

After careful consideration, the Tribunal found that the agreement did not have the effect of substantially lessening competition in the bitumen market. The Tribunal concluded that the agreement did not create a significant barrier to entry for new competitors and that it would not lead to coordinated behaviour among the parties. Therefore, the Tribunal approved the agreement. The Competition and Consumer Commission's appeal to the Federal Court was dismissed. The Tribunal's decision was upheld, and the agreement was approved.

Viva Energy Australia Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established