Vodafone Hutchison Australia

[2013] FWCA 5038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Vodafone Hutchison Australia
(AG2013/6698)

VODAFONE POWERED

Retail industry
COMMISSIONER RIORDAN	SYDNEY, 25 JULY 2013

Application for approval of the Vodafone Powered.

[1] An application has been made for approval of an enterprise agreement known as Vodafone Powered (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Vodafone Hutchison Australia Pty Limited (the Applicant). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] Fair Work Commission received correspondence dated 22 July 2013, which included further material in support of the application together with Undertakings made by and duly signed by the Head of HR - Retail and Reward, proposed to FWC pursuant to s.190 of the Act (the Undertakings).

[4] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 August 2013. The nominal expiry date of the Agreement is 1 October 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The High Court heard an appeal from a decision made by the Competition and Consumer Commission in relation to the proposed merger between Vodafone Australia and Hutchison 3G Australia. The ACCC opposed the merger, arguing it would substantially lessen competition in the mobile telecommunications market in Australia. Vodafone Hutchison Australia sought approval of the merger from the Federal Court, which was subsequently denied by the ACCC. The merger parties then appealed to the High Court.

The legal issues before the Court centred around the interpretation of the relevant statutory provisions governing mergers under the Competition and Consumer Act. Specifically, the Court was tasked with determining whether the ACCC had correctly applied the relevant statutory tests when assessing the proposed merger. The primary issue was whether the merger would substantially lessen competition in the relevant market.

In its decision, the Court held that the ACCC had correctly applied the statutory tests in denying approval of the merger. The Court found that the merger would substantially lessen competition in the mobile telecommunications market, particularly in the post-paid mobile market, due to the significant overlap between the parties' customer bases and the potential for coordinated behaviour between the two merged entities. The Court also rejected the merger parties' argument that the merger would lead to efficiencies that would offset any anti-competitive effects.

The Court ultimately upheld the decision of the Federal Court, denying approval of the merger. The merger parties' appeal was dismissed, and the ACCC's opposition to the merger was upheld. The Court found that the merger would substantially lessen competition in the mobile telecommunications market in Australia, and as such, approval of the merger would be against the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established