22 October 2020The ACCC has instituted proceedings in the Federal Court against printing company Fuji Xerox Australia Pty Ltd and a related company (together, Fuji), alleging that in total nine types of Fuji’s standard form small business contracts contain 173 unfair contract terms.
The ACCC alleges there are 31 different terms which are unfair, including automatic renewal terms, excessive exit fees and unilateral prices increases. The terms have been used in contracts between Fuji and its small business customers for the supply of printing goods and services and technical assistance since at least October 2018.
“We have received a number of complaints from small businesses alleging that some of the terms in Fuji’s contracts have caused them significant financial harm,” ACCC Deputy Chair Mick Keogh said.
“Some of the unilateral variation terms allow Fuji to modify contracts by creating new rights and obligations, including increasing prices, without notifying its customers and without giving them any corresponding right to negotiate or reject.”
“The ACCC will argue that the unfair terms in these contracts cause a significant imbalance in the rights and obligations of Fuji and the small businesses they contract with,” Mr Keogh said.
“This court action by the ACCC should prompt all other traders in the printing support industry to review their standard form contracts and make any necessary changes to remove unfair contract terms.”
The ACCC is seeking declarations that the terms in the existing contracts between Fuji and its small business customers are unfair and therefore void, and an injunction to prevent Fuji from relying on these terms in its current contracts or entering into future contracts that contain those terms.
The ACCC is also seeking an order for a corrective notice, a compliance program and costs.
Notes to editors
Both the ACCC and ASIC are responsible for enforcing the unfair contract terms law in relation to small businesses. ASIC’s role is in relation to financial services. The two agencies work closely, and in this case ASIC delegated its powers to the ACCC to pursue this action.
Under the Australian Consumer Law, businesses are not prohibited from including or relying on an unfair contract term against consumers or small businesses. Although courts can declare unfair terms to be void and consequently unenforceable, they cannot impose penalties on companies using these unfair terms.
The ACCC continues to advocate for a change to the Australian Consumer Law to make it illegal for businesses to include or rely on an unfair contract term against consumers, and for the Courts to have the power to impose penalties where businesses use and benefit from unfair contract terms.
Background
Fuji supplies a range of business products on a lease basis, including photocopiers, scanners and multifunction printers. Fuji also services these products, and supplies software and print management services. Its parent company is Fujifilm Holdings Corporation, based in Japan.
In some cases, Fuji enters into contracts with small businesses as “principal and/or agent” on behalf of Fuji Xerox Finance Limited, a related body corporate.
Fuji’s contract terms came to the ACCC’s attention via complaints from small businesses, including a complaint from the Australian Small Business and Family Enterprise Ombudsman, concerning standard form contracts used across the printing industry more generally.
The attached document below contains the ACCC’s initiating court documents in relation to this matter. We will not be uploading further documents in the event this initial document is subsequently amended.
Concise Statement
ACCC v Fuji Xerox Pty Ltd (NSD1156/2020)
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23 October 2020Australians are increasingly turning to online private messaging services to keep in touch with each other, and are overwhelmingly choosing services provided by Facebook and Apple.
The ACCC’s first Digital Platform Services Inquiry interim report, released today, shows how the use of online private messaging services has grown significantly during the COVID-19 pandemic, as workplaces and schools moved to remote access and people sought alternatives to face-to-face communication.
The report examines the use of online private messaging services in Australia, updates previous ACCC findings on social media and search services and identifies competition and consumer issues across digital platforms.
Facebook Messenger had an estimated 14.7 million monthly active users in Australia in June 2020, while Facebook-owned WhatsApp had an estimated 8 million monthly active users.[1]
Apple enables its iMessage service by default through its Messages app which, along with FaceTime, is pre-installed on iPhones, and may be used on other Apple devices. Approximately half of the mobile operating systems used in Australia are Apple iOS. 
“Australians have embraced the use of online private messaging apps, especially during the COVID-19 pandemic. Many Australian consumers use a range of messaging services during the day,” ACCC Chair Rod Sims said.
“Consumers commonly choose to use the biggest providers in part because their friends, family, colleagues and acquaintances are also more likely to use them, and because most online messaging services don’t allow consumers to send or receive messages to users of different services.”
“This means the big players have a significant competitive advantage over small entrants,” Mr Sims said. 
Research conducted and commissioned by the ACCC for the report shows that many digital platforms, including online private messaging providers and suppliers of advertising services, are able to extensively track users’ activities online and on mobile apps through the use of cookies, software development kits and other technologies.
Large platforms and advertising service providers are able to receive a range of user information from Android apps, AppCensus research commissioned by the ACCC shows.
The ACCC also examined the terms and policies of online private messaging services, and found most included broad statements allowing for the collection of extensive information about users, but provide little clarity about how a user’s data would be collected, used, or shared with others.
In addition, the ACCC considered that emerging technologies, such as voice activated devices and augmented and virtual reality services, will likely provide the platforms with even greater ability to collect data on consumers.
“As large platforms continue to collect vast amounts of consumer information, they are also expanding into new sectors, growing their ‘ecosystems’ and with it, their market power and ability to draw in, and lock in, consumers,” Mr Sims said.
“These expanded services can deliver benefits to consumers, but the impacts on competition and consumer choice need to be closely monitored and considered.”
The ACCC remains concerned about scam activity on digital platforms including on messaging services, finding that reports of scams on platforms have been increasing and a number relate to known celebrity scams or lotto frauds, some of which have been continuing in a similar form for many years.
Separately, ACCC research found that consumers using Google Search on a mobile device are more likely to be shown an advertisement as the first item than when using Google Search on desktops and laptops for some retail product searches. Given almost half of all visits to Google Search are now from mobile devices, this difference in display is significant, impacting consumers’ ability to find information that best suits their needs, and the options that small businesses have to reach customers online.
The ACCC also found that terms in standard agreements between platforms and businesses, which were seeking to advertise on those platforms often left small businesses at a significant disadvantage and could be unfair. For example, some of these terms gave platforms broad discretion to remove content, suspend or terminate accounts, and vary terms without notice.
“We continue to advocate for effective dispute resolution mechanisms to address complaints and disputes between platforms and businesses. This would also benefit consumers who fall victim to scammers using social media or messaging services,” Mr Sims said
“We also continue to advocate for a prohibition of unfair contract terms (with penalties applying to their use) and a prohibition of certain unfair trading practices.”
The ACCC will continue to monitor platforms and the issues identified over the five year term of the Digital Platforms Services Inquiry, and will also continue to work closely with international competition and consumer agencies to address competition and consumer concerns regarding digital platforms.
The report is available at Digital Platforms Services Inquiry – September 2020 interim report.
Background
In February 2020 the Government announced that the ACCC would have a role for five years to monitor digital platform services and their impacts on competition and consumers.
As part of this role the ACCC is to provide the Australian government with six-monthly reports on digital platform services. This is the first of these six monthly reports.
Online private messaging describes  services that enable users to communicate privately with friends, family members, colleagues and other contacts, one-to-one and/or with a group in real-time and in various forms such as text, voice or video.
The ACCC’s second report will be on app marketplaces; the ACCC is continuing to conduct its Digital Advertising Services Inquiry, with an interim report to be provided to the Treasurer by 31 December 2020.
 
[1]       Nielsen Digital Content Ratings, Monthly Total, June 2020, P13+, PC, Smartphone, Tablet, Unique Audience.
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21 October 2020Riddoch Trading Pty Ltd, trading as the Union Dairy Company (UDC), has paid a penalty of $10,500 after the ACCC issued it with an infringement notice for allegedly failing to comply with its publishing obligations under the Dairy Code.
The Code requires dairy processors to publish standard form milk supply agreements on their website by 2.00pm on 1 June each year.
The ACCC alleges that instead of publishing its exclusive supply agreement on its website, UDC required dairy farmers to fill in an online form with data such as herd size and current processor before they could access the agreement.
UDC also allegedly did not publish a non-exclusive agreement until about two months after the 1 June deadline.
“Processors must make their milk supply agreements publicly available, rather than putting them behind a portal or other barrier,” ACCC Deputy Chair Mick Keogh said.
“In failing to properly publish its agreements by the time required by the Dairy Code, UDC may have made it more difficult for farmers to quickly access key information and identify the best supply agreement and milk processor for their circumstances.”
“We’re also concerned that UDC’s delay in publishing a non‑exclusive agreement may have sent the incorrect message to farmers that UDC is not obliged to offer such agreements, and that farmers may have missed out on the option to consider a UDC non-exclusive agreement,” Mr Keogh said.
“We know that many farmers and processors are making time-critical milk supply decisions in June each year, so processors must make their documents publicly available by the due date.”
“It’s very important that processors and farmers understand the requirements of the Dairy Code and comply with them. The Dairy Code is legally binding and breaches may result in the ACCC taking enforcement action,” Mr Keogh said.
Background
UDC is a subsidiary of the Midfield Group, a major agricultural processing group of companies based in Warrnambool, Victoria. UDC bases its operations in Penola, South Australia.
The Dairy Code came into effect on 1 January 2020. It is a mandatory industry code regulating the conduct of farmers and milk processors in their dealings with one another. It aims to improve the clarity and transparency of trading arrangements between dairy farmers and those buying their milk.
Under the Dairy Code, a publisher must, on or before 2.00pm on 1 June each year, publish on its website:

one or more standard forms of milk supply agreements
for each standard form milk supply agreement, a statement setting out the circumstances in which the processor would enter into the agreement

Where a processor offers to enter into an exclusive supply agreement in particular circumstances, the Code requires a processor to publish an option of a non-exclusive supply agreement which it would also enter into in those particular circumstances.
The publication obligations of the Dairy Code apply to all processors with an annual aggregated turnover of $10 million or more in the previous financial year.
All processors and farmers, regardless of size, must at all times deal with each other in good faith under the Code.
Notes to editors
The payment of a penalty specified in an infringement notice is not an admission of a contravention of the Dairy Code.
The ACCC can issue an infringement notice when it has reasonable grounds to believe a person or business has contravened a penalty provision of the Dairy Code.
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21 October 2020Australia must do all it can to align the interests of business and society through sound laws that address some of the more damaging consequences of market power, ACCC Chair Rod Sims said today.
Speaking at the National Press Club in Canberra on ‘Tackling Market Power in the Covid-19 Era’, Mr Sims said it was crucial for Australia to tackle the issue of market power as it sought to recover economically from the pandemic and deal with the implications of an ever-growing digital economy.
“A strong recovery will depend on a competitive economy so we want the innovation, efficiency and restructuring our economy needs, without the damaging consequences from market power being leveraged to the detriment of competition and consumers,” Mr Sims said.
“The issue comes down to whether we want an economy benefitting consumers and allowing small business to thrive, or one that allows the strong to grow stronger by whatever means.”
Mr Sims said more could be done with consumer law and regulation to deal with the most damaging consequences of market power. This included making unfair contract terms illegal.
A law against unfair practices was also needed.
“In my view there is no place for unfair contract terms. And there is no place for unfairness that sees significant detriment from highly questionable business practices,” Mr Sims said.
To emphasise the importance of these issues for small business, Mr Sims said the Australian Consumer Law should be renamed the Australian Consumer and Fair Trading Law.
There were also gaps in the law with little or no regulatory restraint on the market power of some infrastructure, for example monopoly privately-owned ports.
“The ports were sold, usually with no control over their pricing, in order to maximise the proceeds of sale,” Mr Sims said.
Mr Sims said the digital economy has seen significant accumulations of market power in some cases, and may require new regulation.
“While we have all benefitted from the innovations of the main digital platforms, we must ensure their market power doesn’t stifle the future innovation of others,” Mr Sims said.
“We all benefit greatly from a market economy, and companies pursuing maximum profit can deliver significant benefits to society, but we must keep asking whether our market economy favours the producers too much at the expense of the consumers,” Mr Sims said. 
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22 October 2020Alsco Pty Ltd has withdrawn its request for informal merger clearance by the ACCC of its proposed acquisition of Spotless Laundries’ garment laundering business (Spotless Garments). Spotless Garments is part of Spotless Group Holdings Limited which is wholly-owned by Downer EDI Limited (ASX:DOW).
Alsco and Spotless Garments are major suppliers of hiring, cleaning and delivery services for garments across Australia.
The ACCC began its informal merger review on 9 June 2020 and expressed preliminary concerns about the transaction on 8 October 2020.
The ACCC’s preliminary view was that the proposed acquisition would likely substantially lessen competition in the supply of commercial laundry services for garments in each Australian state, as well as in multi-state markets.
The ACCC’s investigation indicated that Alsco and Spotless Garments were the two largest garment laundry suppliers in most states, and the only two major suppliers offering garment laundering services across multiple states.
“We were concerned Alsco’s closest competitor in garments laundering would be removed, leaving garments customers with few comparable suppliers in terms of scale and geographic reach,” ACCC Commissioner Stephen Ridgeway said.
“Mergers between close competitors in already-concentrated markets will attract ACCC scrutiny.”
“During COVID-19, the ACCC remains focused on rigorously assessing proposed mergers to ensure Australia’s economic recovery is supported by competitive markets,” Mr Ridgeway said.
The ACCC’s separate merger review into South Pacific Laundry’s proposed acquisition of Spotless Laundries is continuing.
Background
Alsco and Spotless Garments both offer commercial laundry services for garments – such as uniforms and workwear used in manufacturing, industrial and food services industries – in multiple states and territories across Australia.
Alsco is owned by Alsco Inc., a company based in the United States, and Spotless Garments is the garment laundry business of Spotless Laundries, which is part of Spotless Group Holdings. Spotless Group Holdings is wholly-owned by Downer EDI Limited.
The ACCC’s Statement of Issues is available on our public register.
South Pacific Laundry is separately bidding to acquire Spotless Laundries. The ACCC continues to consider that transaction and further information is available at South Pacific Laundry – Spotless Laundries.
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22 October 2020An ACCC class exemption due to commence in early 2021 will allow small businesses, franchisees and fuel retailers to collectively negotiate with their suppliers and processors, franchisor or fuel wholesaler respectively, without first having to seek ACCC approval.
Businesses will be able to use the class exemption after the period for parliamentary disallowance expires in early 2021. This collective bargaining exemption is the first class exemption to be introduced by the ACCC.
Although collective bargaining by small businesses generally does not harm competition, it involves competitors acting together, and those businesses therefore require some form of exemption to avoid the risk of breaching competition laws.
Currently this is only available via the ACCC’s ‘authorisation’ or ‘notification’ processes, but this new class exemption will remove the need for most small businesses to use those processes.
“We hope this class exemption will help a range of Australian small businesses and franchisees,” ACCC Commissioner Stephen Ridgeway said.
“There can be many benefits for businesses negotiating as a group rather than individually, including sharing the time and cost of negotiating contracts, and potentially giving group members more of a say on contract terms and conditions.”
“There are often also time and cost savings for the suppliers or franchisor the group is bargaining with. This change will mean the benefits for all parties can be gained through a much simpler and quicker process,” Mr Ridgeway said.
The class exemption will apply to businesses and independent contractors who form, or are members of, a bargaining group, and who each had an aggregated turnover of less than $10 million in the financial year before the bargaining group was formed.
This will cover more than 98 per cent of Australian businesses.
In addition, all franchisees and fuel retailers governed by either the Franchising Code of Conduct or the Oil Code of Conduct will also be able to collectively negotiate with their franchisor, regardless of their aggregated turnover. 
Bargaining groups will only have to fill out a simple, one page form, and provide it to the ACCC. Legal protection from competition laws will then commence automatically. There will be no fee for lodging the form.
“The class exemption will also increase levels of awareness among small businesses about the potential benefits of collective bargaining which, along with the simpler process, may encourage more businesses to collectively bargain,” Mr Ridgeway said.
The ACCC will release further information about the class exemption, including the form businesses need to lodge with the ACCC and a guide to using the class exemption, in early 2021 when the class exemption becomes available for use.
More information about the class exemption can be found at Collective bargaining class exemption. 
Notes to editors
The class exemption does not require anyone to join a collective bargaining group, or require a customer, supplier or franchisor to deal with the bargaining group if they don’t want to. It simply means that the group can collectively bargain with the supplier or franchisor on a voluntary basis without needing to worry about a possible competition law breach. The other party would still be free to choose to continue to negotiate with each member of the group individually.
Businesses that fall outside the scope of the class exemption (for example, larger businesses or those with more complex arrangements) will still be able to use the ACCC’s authorisation and notification processes to seek legal protection to collectively bargain on a case-by-case basis.
Class exemption registration process
Once the ACCC has made a decision to make a class exemption there are a number of administrative steps that are required for the class exemption to commence operation.
The ACCC must lodge the legislative instrument and an explanatory statement with the Office of Parliamentary Counsel for registration on the Federal Register of Legislation. The instrument must be tabled in Parliament within six sitting days after registration. It is then subject to a disallowance period of 15 sitting days.
Once the disallowance period has passed the ACCC will set a commencement date for the class exemption. Precisely when this will occur is dependent on the Parliamentary sitting dates for 2021, which have not yet been finalised.
Background
Since 6 November 2017, the ACCC has had the power to make ‘class exemptions’ for specific types of business conduct.
The ACCC can make a class exemption if it is satisfied that the conduct (for example, small business collective bargaining) is unlikely to substantially lessen competition or is likely to result in a net public benefit.
This new power is in addition the ACCC’s existing authorisation and notification processes that allow businesses to seek legal protection for arrangements that risk breaching competition law.
The collective bargaining class exemption is the first class exemption the ACCC has made under this new power.
The ACCC has considered many applications for collective bargaining arrangements. It has gathered a good evidence base from these cases about the types of collective bargaining that produce public benefits and are unlikely to harm competition, and are suitable for a class exemption.
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19 October 2020The ACCC has today commenced civil proceedings in the Federal Court against overhead crane company NQCranes Pty Ltd, alleging it engaged in cartel conduct in contravention of the Competition and Consumer Act.
The ACCC alleges that NQCranes entered into a signed agreement with a competitor in the overhead crane market in August 2016. This agreement allegedly included a cartel provision to share the market by not targeting each other’s customers for overhead crane parts and servicing in Brisbane and Newcastle.
Specifically, it is alleged that NQCranes and its competitor entered into a ‘distributorship agreement’ which contained a provision that the companies would not target each other’s existing service customers in Brisbane and Newcastle.
The ACCC alleges that in meetings, phone calls and emails the companies sought to enter an agreement of ‘mutual benefit’ to both parties, and that the non-targeting of each other’s customers in Brisbane and Newcastle was a key part of that agreement.
“NQCranes was competing for business with a competitor when we allege they agreed to divide the market and not to target each other’s customers. Market sharing is serious, anti-competitive behaviour which harms consumers, other businesses and the economy in general,” ACCC Chair Rod Sims said.
“It is illegal for any corporation to make cartel agreements with its competitors, whether they are well known multinationals, or small businesses operating in regional areas. Enforcing cartel laws is an important enduring priority for the ACCC, no matter what type of business is involved,” Mr Sims said.
The ACCC is seeking civil penalties, declarations and orders against NQCranes for the alleged conduct.
Background
NQCranes is a privately owned overhead crane company which designs, services and manufactures cranes. It is based in Mackay, Queensland, with operations across Queensland and parts of New South Wales. It provides lifting equipment to a variety of industries, including the mining, steel and defence industries. It describes itself as Australia’s largest independent overhead crane company.
Operators in the crane industry manufacture overhead cranes and gantry cranes. Many of the products, including crane steelwork, hoists, electrics and drives of cranes, are specifically manufactured to meet a client’s needs. Operators frequently provide installation, maintenance and repair services.
Overhead cranes are fixed indoor cranes used to handle heavy loads. They are usually installed in large warehouses and often used as part of the production process, as well as in storage facilities, mining and construction projects.
Note to editors
The ACCC investigates cartel conduct, manages the immunity process and takes civil cartel proceedings in the Federal Court. 
Cartel conduct occurs when businesses agree to act together instead of competing with each other. Cartel conduct is an agreement between competitors to price fix, share markets, rig bids and/or control output or limit the amount of goods and services supplied. More information on prohibited cartel conduct can be found on the ACCC’s website.
The maximum civil penalty which can be ordered by the Court under the Competition and Consumer Act for each breach of the cartel laws is the greater of:

$10 million;
three times that total value of the benefits that have been obtained and are reasonably attributable to the commission of the offence, if this can be determined; or
ten per cent of the company’s annual turnover in Australia.

Anyone with information about cartel conduct is urged to call the ACCC Cartel Hotline on (02) 9230 3894.
The attached document below contains the ACCC’s initiating court documents in relation to this matter. We will not be uploading further documents in the event these initial documents are subsequently amended.
Statement of Claim
ACCC v NQCranes Pty Ltd_Statement of Claim
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19 October 2020Electricity prices paid by many residential and small business customers in New South Wales, South Australia, South East Queensland and Victoria fell between 2018 and 2019, the ACCC’s analysis of extensive data from over 8.5 million bills has shown, according to its latest electricity markets report.
The new data from the bills of over 1.5 million customers of 11 electricity retailers shows that there are now more customers on market offers, and fewer on the usually more expensive default standing offers.
“While it is still early days, the analysis of this large unique dataset indicates that electricity pricing and advertising reforms introduced in July last year have been effective in protecting customers on standing offers from excessive pricing and bringing down electricity bills,” ACCC Chair Rod Sims said.
The ACCC has also released an additional report examining the impact of COVID-19 on affordability and consumption.
The impact of COVID-19 on electricity affordability and consumption
“The supplementary report shows that overall electricity consumption fell by 2 per cent in the second quarter of 2020, compared to the same time last year. Residential consumption rose significantly during the nationwide COVID-19 lockdowns, and because of colder weather in some states, while business consumption plummeted,” Mr Sims said.
For example, Melbourne residential electricity consumption rose by between 10 and 30 per cent in April and May 2020, depending on the weather, compared to the same period in 2019.
“The pandemic is exacerbating energy affordability concerns. At a time when many consumers are experiencing reduced incomes, increased electricity consumption could lead to rising household debt and financial strain,” Mr Sims said.
“Available data suggests more customers are a month behind in bill payments and energy affordability may become an even bigger concern in coming months.”
Wholesale prices staying low
Wholesale spot market electricity prices have been falling since the first quarter of 2019, when they reached a peak of between $89 per MWh in Queensland and $220 per MWh in South Australia. This year’s average winter spot prices in the NEM ranged between $36 per MWh in Queensland and $59 per MWh in Victoria while future contract prices remain low.
“The drop in wholesale prices is excellent news for consumers, especially at a time of rising household bills. While wholesale price falls have been partially offset by higher network costs (except in South Australia where network costs fell), retailers are legally required to pass on any sustained savings to consumers,” Mr Sims said.
“We will continue to monitor prices and, if necessary, enforce the law to ensure consumers benefit from sustained drops in wholesale costs.”
The low wholesale prices are largely due to lower fuel costs for generators and increased renewable generation.
New billing data shows customers are paying lower prices 
De-identified data from over 8.5 million bills issued between July 2018 and December 2019 enabled the ACCC to conduct closer analysis of what different customer groups paid for their electricity.
The electricity market report looked at combined data in New South Wales, South Australia, South East Queensland and Victoria for the third quarter of 2019 compared to the same period in 2018. It found that the median effective price paid by customers on standing offers fell by 4.4 per cent (residential) and 7.5 per cent (small business), whereas the median effective price paid by customers on market offers fell by 3.5 per cent (residential) and 1.5 per cent (small business).
While concession and hardship customers are generally paying lower prices than other residential customers, those who are on payment plans due to financial difficulty are paying more than concession and hardship customers. The electricity market report found that less than 60 per cent of payment plan customers on market offers with conditional discounts, such as paying on time, did not meet the conditions.
“There are still too many customers who do not achieve conditional discounts on these types of plans, which means they pay higher prices that can exacerbate existing financial difficulties. We urge retailers to abide by best practice for their vulnerable customers and help them move to the most suitable electricity plans,” Mr Sims said.
But customers should shop around for further savings
Retail prices paid have fallen for many customers, but the report also finds that the median effective price paid by customers on market offers is lower than that paid by customers on standing offers.
“Residential customers with a median annual electricity usage could save around $219 a year by switching from a standing offer to a market offer, while small businesses on standing offers could save about $424 a year,” Mr Sims said.
“It continues to pay for households and small businesses on market offers to shop around, especially those with one of the big three electricity providers, because these customers often paid more than customers with other providers.”
Under electricity retail pricing and advertising reforms introduced in July 2019, retailers across New South Wales, South Australia, South East Queensland and Victoria are required to show how their offers compare to the Default Market Offer or Victorian Default Offer prices set by the regulator. This enables customers to more easily compare offers across the market.
The ACCC enforces these reforms in New South Wales, South Australia and South East Queensland and in July 2020, Locality Planning Energy became the first electricity provider to pay a penalty for contraventions of the Electricity Retail Code.
“Free government comparison services, like Energy Made Easy and the Victorian Energy Compare, are also an easy way for consumers to compare the annual costs of offers and find the best deal for them,” Mr Sims said.
Solar rebates reduce the price for solar customers
Solar customers paid 24 per cent lower effective prices for electricity from the grid than non-solar customers in 2019, largely because of solar rebates. While solar residential customers tended to use slightly more electricity from the grid, their median bill was $313 pa lower than the bill of non-solar consumers.
“We encourage schemes that improve access to solar systems for lower income households, but non-solar households should not have to shoulder the costs of these schemes,” Mr Sims said.
Background
The National Electricity Market (NEM) is the wholesale electricity market that covers Queensland, New South Wales, Victoria, South Australia, Tasmania and the Australian Capital Territory. This report examined bills for residential and small business customers in New South Wales, South Australia, South East Queensland and Victoria.
Most electricity customers in New South Wales, South Australia, South East Queensland and Victoria are on a market contract or ‘market offer’. Standing offers are applied when a customer does not enter a market contract, and have historically been more expensive than market offers. The electricity retail pricing reforms introduced in July 2019 limit the amount that retailers can charge for standing offers. 
In August 2018, the then Treasurer, the Hon Scott Morrison MP, directed the ACCC to hold an inquiry into the prices, profits and margins in relation to the supply of electricity in the NEM. This is the fourth time the ACCC has reported as part of this inquiry, and follows from the reports provided to the Government in March, August and November 2019.
The focus of the September 2020 report is to assess the early effects of the Default Market Offer and Victorian Default Offer reforms implemented to improve affordability in the NEM, based on analysis of a new dataset encompassing over 8.5 million electricity bills.
The supplementary report sets out recent market developments, including some of the effects of the COVID-19 pandemic on electricity used from the grid and updates on our electricity sector monitoring and enforcement work.
Both reports are available on the ACCC’s website at Electricity market monitoring 2018-2025.
The ACCC is required to report at least every 6 months. The next report is scheduled for May 2021.
 
Figure 1: Year-on-year percentage change in total consumption in Victoria

Source:    AusNet Services, Vic DNSP weekly energy consumption data, 28 August 2020
 
Figure 2: Monthly average underlying (sub $300/MWh) wholesale regional reference prices ($/MWh)

Source:    NEM market data
 
Figure 3: Median effective prices paid by residential and SME standing and market offer customers in 2019 Q3 (percentage change from 2018 Q3) for Victoria, NSW, SA and South East Queensland combined

Source:    ACCC analysis of retailer billing data
 
Figure 4: Median effective prices paid by residential customer groups in 2019 Q3 (change from 2018 Q3) for Victoria, NSW, SA and South East Queensland combined

Source:    NEM market data
 
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15 October 2020The ACCC will not oppose Danfoss A/S’s (Danfoss) proposed acquisition of Eaton Corporation plc’s hydraulics business (Eaton Hydraulics).
Danfoss and Eaton Hydraulics are global suppliers of hydraulics systems and components, including hydraulic motors, valves, pumps, steering units and other products for use in on-road and off-road vehicles.
In Australia, their products are supplied through distributors, and directly to original equipment manufacturers.
“Following the proposed acquisition, Danfoss and Eaton would continue to face strong competition from Bosch Rexroth, Parker Hannifin, M+S and other overseas suppliers,” ACCC Commissioner Stephen Ridgeway said.
“All hydraulics systems and components are imported into Australia. Market participants did not identify any products for which other imports are not readily available.”
“Given the information we obtained and feedback from the market, we concluded that this transaction would not substantially lessen competition in any relevant hydraulics market,” Mr Ridgeway said.
Further information is available at Danfoss A/S – Eaton Hydraulics.
Background
Danfoss is a major supplier of power and control systems, with its hydraulic products used in various industries including agriculture, construction, manufacturing and mining. It is headquartered in Denmark.
Eaton Corporation is a diversified industrial manufacturer with corporate headquarters in Ireland and operation headquarters in the USA. They are active in hydraulics, electrical, vehicle, aerospace and filtration. The proposed acquisition is limited to Eaton’s hydraulic business segment.
Release number: 214/20ACCC Infocentre: Use this form to make a general enquiry.
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15 October 2020Efficient infrastructure is integral to rebuilding the economy beyond the pandemic but cannot come by excessively focussing on the needs of infrastructure owners at the expense of the users, ACCC Chair Rod Sims said today.
Mr Sims was speaking at the Australian Financial Review’s National Infrastructure Summit on competition issues in infrastructure and changes since COVID-19.
Infrastructure issues addressed in the speech included the competitiveness of the NBN, energy affordability and disruption to the airline industry.
”The final roll out of the NBN could not have been more timely as so many families and businesses moved from physical to virtual workplaces and became wholly dependent on their broadband connections,” Mr Sims said.
“Australia’s broadband infrastructure has been seriously tested during the pandemic and our most recent Measuring Broadband Australia data shows that average NBN speeds haven’t missed a beat. It has allowed so many of us to go to work and school, or just stay in touch with family, without leaving the house.”
“The arrival of 5G networks will bring a new and very welcome source of competition with both mobile and fixed-location broadband connections and should certainly be encouraged,” Mr Sims said.
“Rather than be guided by any sense of protecting the asset value of the NBN, we need to promote competition wherever possible and see Australians with the most efficient possible high speed broadband,” Mr Sims said.
“This is why the NBN was built.”
Mr Sims also said that electricity prices are high nationally and affordability continues to be a key concern for Australian households and businesses.
“It is imperative we don’t let the effects of the COVID-19 pandemic result in further market concentration, and we want to see the current substantial reductions in wholesale market prices being passed on to consumers,” Mr Sims said.
“Past over-investment in some state-owned networks was driven by an increase in network reliability standards and inadequate regulatory rules. The associated costs are estimated to be in the tens of billions of dollars and customers in those states continue to pay for it.”
“As our electricity transmission system is redesigned to address reliability and sustainability concerns, we cannot lose sight of affordability as increased costs will be passed onto consumers,” Mr Sims said.
“There are real concerns that again affordability is being given inadequate weight in our electricity market policy discussions.”
The economic contraction resulting from COVID-19 has seen a sudden fall in international gas prices that has not been reflected in the east coast domestic contract market.
“Increasing competition and affordability in domestic gas markets is more critical now than ever to ensure that Australian gas customers benefit from low international prices,” Mr Sims said.
“We see a sense of urgency in ensuring producers bring gas to market in a timely manner, and at prices that more closely reflect the drop in international prices.”
Mr Sims also spoke about the pandemic’s devastating impact on the airline industry.
“A competitive airline industry is vital to meet the needs of consumers and the economy more broadly, especially for a large country as geographically dispersed as Australia,” Mr Sims said.
“We are following the Government’s directive to monitor prices, costs and profits in the domestic airline industry and we want to see the industry up and running and competitive as quickly as possible.”
“It will also be interesting to see how unregulated monopoly airports price their services and otherwise react as the aviation sector recovers.”
“The ACCC’s focus will continue to be on ensuring the infrastructure sector is competitive and delivered in a way that is in the long term interests of consumers,” Mr Sims said.
“We must keep asking whether as a country we are too focussed on the needs of infrastructure owners at the expense of the users and so the economy.”
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15 October 2020Amaysim Australia Ltd (ASX: AYS) and Lycamobile Pty Ltd have paid penalties totalling $126,000 and $12,600 respectively after the ACCC issued each of these mobile services providers with an infringement notice for alleged false or misleading representations about their mobile phone plans.
The ACCC alleges that each business separately misrepresented that their mobile phone plans were ‘unlimited’ in advertisements on social media designed to entice new customers, when in fact the plans had a maximum data allowance.
On or around 1 January 2020, amaysim published an advertisement on its Twitter account which included the statement ‘…your mother loves the Unlimited Mobile Data offer from amaysim’ and the hashtag ‘#UnlimitedMobileData’, which the ACCC alleges represented that the amaysim plans provided unlimited mobile data to consumers.
In fact, amaysim’s advertised plans only provided an unlimited data allowance for the first three renewals and then would revert to a capped amount, with charges imposed if the data use by customers exceeded the capped amount.
On or about 29 November 2019, Lycamobile published an advertisement on its Facebook page which referred to ‘Unlimited Plan S’ and ‘Unlimited Plan M’, which the ACCC alleges represented to consumers that these plans would provide an unlimited data allowance. Each of Lycamobile’s ‘unlimited’ plans had a capped data allowance, and customers who exceeded that allowance were subject to additional charges.
The ACCC alleges that the messages in these advertisements breached Australian Consumer Law (ACL) and were likely to mislead consumers.
“Consumers who saw the word ‘unlimited’ in the advertisements without any explanation of the limits of the plans were likely to expect they would not be charged additional fees for mobile data, no matter how much data they used,” ACCC Chair Rod Sims said.
“The telco industry has been previously put on notice that their advertisements must be clear and transparent, and must not contain claims like ‘unlimited’ without a clear and prominent disclosure of any qualification or exception which applies to the offer. We will continue to monitor mobile plan advertisements and won’t hesitate to enforce the law.”
“The amount of data included in a mobile phone plan is an important factor for many consumers in choosing a plan, and it is important that consumers can readily understand what they are signing up to,” Mr Sims said.
Background:
Amaysim Australia Limited is an Australian provider of sim-only mobile phone plans, for customers who have purchased a mobile phone from elsewhere. Amaysim was founded in November 2010 and was listed on the ASX in 2015. It is the largest mobile virtual network operator (MVNO) in Australia, with an estimated market share of about 5.4 per cent in 2019 in the Australian sim-only market, and operates on the Optus 4G network.
Amaysim also provides energy plans. In March 2019, the Federal Court ordered Amaysim Energy (trading as Click Energy) to pay $900,000 in penalties for making false or misleading marketing claims about potential discounts and savings on its energy plans.
Lycamobile Pty Ltd is a British MVNO which operates in 23 countries. It commenced trading in Australia in 2010, provides sim-only plans and operates on the Telstra network. It is estimated that in 2019 Lycamobile had a 2.2 per cent market share in the Australian SIM-only market.
In 2009, TPG Internet Pty Ltd gave a court-enforceable undertaking to the ACCC after conceding that advertising for its Unlimited Cap Saver mobile phone plan may have contravened the law.
In 2010, the ACCC took action against Optus for the misleading use of the term ‘unlimited’ in advertisements promoting Optus’ broadband plans.  In 2011, the Federal Court declared that Optus had engaged in misleading or deceptive conduct as it failed to sufficiently and prominently disclose that once consumers reached their speed cap, the speed of their service would be throttled and that at the throttled speed some uses would be either unworkable or significantly impaired.
In 2014, Medion Australia Pty Limited (Medion) provided a court-enforceable undertaking to the ACCC after representing that its ALDImobile ‘Unlimited Pack’ provided customers unlimited features when significant usage restrictions applied.
In 2018, ACCC Chair Rod Sims put the telco industry on notice to ensure their advertising is clear and transparent, following the use of the term ‘unlimited’ by the three major telcos (Optus, Telstra and Vodafone) to promote mobile data plans, where allowances were subject to limitations.
In 2018, the ACCC launched legal action against internet provider Australian Private Networks Pty Ltd (trading as Activ8me) for allegedly making false and misleading representations when advertising the speed, data limits and costs of its internet services.  In 2019, the Federal Court ordered Activ8me to pay $250,000 in penalties and refund consumers for misleading conduct.
Note for editors
The payment of a penalty specified in an infringement notice is not an admission of a contravention of the Competition and Consumer Act.
The ACCC can issue an infringement notice where it has reasonable grounds to believe a person or a business has contravened certain consumer protection laws.
For infringement notices issued in relation to an alleged contravention of the ACL for conduct which occurred prior to July 2020, the penalty for a listed corporation is $126,000, which is ten times higher than the $12,600 penalty for a corporation that is not listed.
 

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Competition and Consumer Act 2010

14 October 2020The ACCC has instituted proceedings in the Federal Court against B & K Holdings (QLD) Pty Ltd, trading as FE Sports, alleging that it engaged in resale price maintenance for the wholesale supply of cycling and sporting products in Australia.
It is alleged that between February 2017 and June 2019, FE Sports provided 328 dealer agreements to existing or prospective dealers containing terms that prohibited the dealer from advertising or promoting the products of certain brands on the dealer’s website for less than the recommended retail price (RRP) set by FE Sports.
The agreements were for the supply of bicycle accessory and sporting brands Wahoo, Pirelli, 100%, 3T and Stages.
It is also alleged that FE Sports subsequently entered into 242 agreements with dealers containing a recommended retail price term.
For example, over 200 dealer agreements for 3T, 100% and Stages products contained a clause that stated “The Dealer is permitted to advertise and promote [Brand] products through its internet home page provided that no reference is made to a price other than RRP. Under no circumstances is a [Brand] product to be advertised for sale by the Dealer at a discount”.
FE Sports specified the applicable RRP for each product on its website, to which dealers had access, and also maintained a master price list of RRPs, which it provided to dealers on request.
“We allege FE Sports made it known that dealers were not to advertise products at a discount to the recommended retail price,” ACCC Commissioner Sarah Court said.
“Resale price maintenance is anti-competitive conduct which limits the ability of retailers to compete on price and ultimately can mean consumers pay more for products, because the retailers are stopped from discounting.”
Prior to this alleged conduct, the ACCC had warned FE Sports on three occasions that resale price maintenance is illegal. 
“FE Sports was well and truly put on notice by the ACCC that resale price maintenance is illegal, and it has had ample opportunity to ensure it complied with the law,” Ms Court said.
“All businesses are reminded that it is illegal to dictate minimum prices to retailers, who are entitled to advertise and sell products at discounted prices.”
The ACCC is seeking declarations, injunctions, pecuniary penalties, an order for corrective notices, a compliance program, and costs.
Background:
FE Sports is a Brisbane-based wholesale distributor of cycling and sporting products to hundreds of dealers in Australia, many of which are small businesses such as local and family-owned bike shops.
Notes to editors:
Resale price maintenance is the illegal practice where a supplier prevents, or attempts to prevent, independent retailers for advertising or selling products below a specified price.
Resale price maintenance occurs when manufacturers or suppliers:

make it known they will not supply unless a distributor or retailer agrees to advertise or sell at a price not less than a specified minimum price
induce or attempt to induce the retailer not to advertise or sell below a specified minimum price
withhold supply of goods or services because the distributor or retailer has advertised or sold at a price below a specified minimum price. 

Resale price maintenance is strictly prohibited by the Competition and Consumer Act and is not subject to a substantially lessening competition test. More information about resale price maintenance can be found at Imposing minimum resale prices.
Companies may lodge a notification of Resale Price Maintenance conduct which will be permitted if the likely public benefit from the resale price maintenance conduct outweighs the likely public detriment from the conduct.
The attached document below contains the ACCC’s initiating court documents in relation to this matter. We will not be uploading further documents in the event these initial documents are subsequently amended.
Concise Statement

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12 October 2020All new and imported second hand quad bikes sold in Australia must now meet the first stage of the government’s mandatory safety standard after it came into effect on 11 October. 
As of yesterday, all new and imported second hand quad bikes sold in Australia must be tested for lateral static stability, display the angle at which the quad bike tips onto two wheels on a hang tag at the point of sale, and carry a roll over warning label on the quad bike. The owner’s manual must also include roll over safety information.
Additionally, the quad bikes must be fitted with a spark arrester that conforms to the Australian or United States standard, and meet certain requirements of the United States or European quad bike safety standards. These relate to equipment such as brakes, clutch, throttle, tyres, drive train, handlebars and foot wells, maximum speed capabilities and the provision of safety information through warning labels and hang tags.
“This first stage of the standard is a significant step in improving the safety of quad bikes in Australia, and addressing the extremely concerning rate of injuries and fatalities caused by quad bike accidents,” ACCC Deputy Chair Mick Keogh said.
“Consumers will now be able to have confidence that quad bikes they buy will meet a certain level of quality and safety.”
Safework Australia data shows 152 people have died from incidents involving quad bikes since 2011, including 23 children. It is estimated that hundreds of people also present to hospital emergency departments each year as a result of quad bike related injuries.
There have already been 16 fatalities this year, double last year’s toll.
Most quad bike accidents involve a vehicle rollover, which can result in victims dying from injuries associated with being crushed by the quad bike.
“We know rollovers are one of the greatest risks to quad bike riders. The new hang tags will allow riders to quickly compare the stability of similar quad bikes when they are shopping around, and the warning label will remind quad bike users of the risks while riding,” Mr Keogh said.
Additional requirements for new and second hand imported general use quad bikes will become mandatory in one year’s time, which include the fitting or integration of operator protection devices and minimum stability requirements.
“Safe riding precautions remain crucial. Always wear helmets and the right safety gear, complete the necessary training, and never let children ride adult quad bikes.”
The ACCC is working with state and territory Australian Consumer Law regulators to conduct surveillance activities to ensure suppliers are complying with the standard. Non-compliance may attract fines and penalties.
Consumers and businesses can make a complaint to the ACCC if they believe they have seen or have been sold a quad bike that does not comply with the requirements of the standard.
More information for consumers and businesses or suppliers is available on the Product Safety Australia website.
Notes to editors:
In October 2019, the Federal Government accepted the ACCC’s recommendation to introduce a new mandatory safety standard for quad bikes.
The safety standard has two stages.
Under stage 1, which came into effect on 11 October 2020, all new quad bikes and imported second-hand quad bikes must now:

meet the requirements within sections 4 to 8 of the US quad bike Standard, ANSI/SVIA 1-2017 or sections 5 to 7 of the EN 15997:2011 Standard, and have a spark arrester installed that conforms to AS 1019-2000 or US 5100-d Standards
be tested for lateral static stability using a tilt table test and display the angle at which they tip onto two wheels on a hang tag at the point of sale
have a durable label affixed, visible and legible when the quad bike is in operation, alerting the operator to the risk of rollover, and must include rollover safety information in the owner’s manual.

Stage 2, which requires the fitting of operator protection devices and minimum stability requirements for new and second hand imported general use quad bikes, will become mandatory in one year’s time.
A supplier may be found guilty of a criminal offence if they fail to comply with a mandatory safety or information standard. The maximum fine is $500 000 for individuals and for a body corporate, the greater of:

$10 000 000
three times the value of the benefit received, or
10% of annual turnover in the preceding 12 months, if a court cannot determine the benefit obtained from the offence.

Civil penalties for the same amounts also apply.
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8 October 2020The Federal Court has ordered iSelect Limited to pay $8.5 million in penalties for making false or misleading representations about its electricity comparison service.
iSelect admitted that, between November 2016 and December 2018, it misled consumers by representing on its website that it would compare all electricity plans offered by its partners and recommend the most suitable or competitive plan, when this was not the case. During the period, hundreds of thousands of consumers visited the website.
Actually, iSelect’s commercial arrangements with partner electricity retailers restricted the number of electricity plans those retailers could upload onto the iSelect systems, and therefore the recommended plans were not necessarily the most suitable or competitive.
“iSelect was not upfront with consumers that it wasn’t comparing all plans offered by its partner retailers. In fact, about 38 per cent of people who compared electricity plans with iSelect at that time may have found a cheaper plan if they had shopped around or used the government’s comparison site Energy Made Easy,” ACCC Chair Rod Sims said.
“iSelect received commissions from the retailers when those consumers selected a plan via the iSelect website or call centre.”
In addition, iSelect failed to adequately disclose that cheaper plans from its preferred retail partners were only available via its call centre and were not available through iSelect’s online comparison service. 
iSelect also admitted that, between March 2017 and November 2019, it misrepresented the price of some of the plans it recommended to almost 5,000 consumers. Because of an error in its website and call centre code, iSelect quoted a total price for some plans which underestimated the cost by up to $140 per quarter.
“iSelect’s misleading conduct may have caused some consumers to switch electricity providers or plans on the basis of a price that was understated or without being aware that a cheaper plan was available,” Mr Sims said.
“It can be complex and confusing for consumers to compare prices and other features of electricity services in a bid to get the best deal for what often is a major household expense. Comparison sites need to make it very clear if their recommendations are influenced or limited by commercial relationships.”
“Comparator websites also have a responsibility to ensure that their algorithms are correct, and must implement measures to prevent incorrect recommendations. This is particularly so when they generate significant revenue in commissions from those recommendations,” Mr Sims said.
iSelect admitted liability and made joint submissions with the ACCC to the Federal Court consenting to the orders sought, including penalties.
The Court also made corrective orders and ordered iSelect to pay part of the ACCC’s legal costs, by consent.
Background
The ACCC instituted proceedings against iSelect in April 2019.
iSelect Limited (ASX: ISU) is a commercial price comparator which compares utilities, insurance and finance products. It commenced retail electricity comparison services in 2012.
In the last two years, iSelect has provided over 4 million energy comparisons. iSelect does not charge consumers for use of its comparison service. It is paid fees and commissions by its partner retailers when a consumer who has used the comparison service purchases an energy plan through iSelect.
iSelect compares electricity services in South East Queensland, New South Wales, the Australian Capital Territory, Victoria and South Australia.
Notes to editors
In July 2018, the ACCC released its Retail Electricity Pricing Inquiry report, recommending a mandatory code apply to third party electricity comparators to ensure that comparators adequately disclose their commercial relationships and the influence that such relationships have on their recommendations.
More information is available at Comparator websites.
Consumers can compare generally available electricity plans in their area via the Australian Government’s Energy Made Easy website.
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Electricity

8 October 2020The ACCC has preliminary competition concerns about the proposed acquisition by Alsco Pty Ltd of Spotless Laundries’ garment laundering business (Spotless Garments), which is part of Spotless Group Holdings Limited. Spotless Group Holdings Limited is wholly-owned by Downer EDI Limited (ASX:DOW).   
Alsco and Spotless Garments both offer commercial laundry services for garments in multiple states and territories across Australia.
“This transaction combines the two largest garment laundry suppliers in most states and the only two major suppliers with a presence across the country,” ACCC Commissioner Stephen Ridgeway said.
The ACCC’s preliminary view is that Alsco and Spotless Garments are each other’s closest competitor. 
“Alsco and Spotless Garments operate in an already concentrated industry, and few other garment laundry suppliers provide these services with a similar scale and geographic reach,” Mr Ridgeway said.
“The ACCC is concerned that this transaction will remove an important constraint on Alsco.  Garment customers that operate across Australia with large volume requirements will have no comparable alternatives.”
The ACCC’s investigation found that potential entrants may be unwilling to enter into garment laundering, while small existing suppliers may face difficulties in expanding, due to material upfront costs. The ACCC will explore whether existing suppliers and linen focused laundry suppliers would constrain Alsco post-acquisition before a final decision is made.
The ACCC has published a statement of issues and is seeking further information. The ACCC is inviting submissions by Friday 30 October 2020.
Further information is available at Alsco Pty Ltd – Spotless’ garments business.
Background:
Alsco and Spotless Laundries provide hiring, cleaning and delivery services for linen and garments in multiple states and territories across Australia. Both supply to customers in metropolitan and regional areas in New South Wales (including the Australian Capital Territory), Queensland, South Australia, Tasmania, Victoria and Western Australia.
Linen and garments are the two main classes of laundered items for accommodation, healthcare/aged care and industrial customers. Garments include industrial workwear and uniforms.
Alsco is owned by Alsco Inc., a company based in the United States, and Spotless Garments is the garment laundry business of Spotless Laundries, which is part of Spotless Group Holdings.
South Pacific Laundry is separately bidding in the sale process to acquire Spotless Laundries. The ACCC is currently considering this transaction and further information is available at South Pacific Laundry – Spotless Laundries.
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6 October 2020The ACCC has today released draft determinations proposing to exempt the services provided by grain handler Viterra at its Port Adelaide Inner Harbour and Outer Harbor facilities from parts of the Port Terminal Access (Bulk Wheat) Code.
Viterra applied to be exempt from parts 3 to 6 of the code at all six of its South Australian port terminals; however, the ACCC’s draft determinations do not propose to exempt the company’s Port Lincoln, Wallaroo, Port Giles, and Thevenard facilities.
“Although Viterra is the dominant port service provider for South Australia’s bulk grain export market, we’ve formed the preliminary view that an increase in competition justifies a reduction in regulation at Inner Harbour and Outer Harbor,” ACCC Deputy Chair Mick Keogh said.
“The draft determinations for Inner Harbour and Outer Harbor were finely balanced but after looking at the South Australian grains market in detail, we were satisfied that Viterra’s Port Adelaide terminals face a level of competition from nearby third-party facilities, Port Adelaide’s containerised exports, as well as domestic grain markets.”
“We don’t believe that Viterra’s port terminal facilities around the Yorke Peninsula and Eyre Peninsula face sufficient competition to support exemptions at this time, though the ACCC will continue to closely monitor developments in the South Australian market,” Mr Keogh said.
Over the last six years, 68 per cent of all grain grown in South Australia, and 94 per cent of all bulk grain exports, have been exported through Viterra’s port terminal facilities.
If the ACCC grants a final exemption for Inner Harbour and Outer Harbor, the lower level of regulation will include Viterra no longer being subject to the code’s non-discrimination requirements and dispute resolution processes. The company will also not require ACCC approval of capacity allocation systems, and no longer be required to publish certain information about expected capacity or bulk grain stocks held at these port terminals.
Exempt service providers are still required to deal with exporters in good faith, publish a port loading statement and loading procedures, and make standard terms and reference prices available.
“The code exists to ensure that bulk wheat exporters have fair and transparent access to terminal facilities,” Mr Keogh said.
“Because the level of competition in port services varies significantly between regions, we take a balanced approach and are comfortable reducing regulation in places where multiple service providers are operating.”
“We rely on industry input to assist our decision making and given these are draft determinations, we welcome the views of stakeholders including growers, traders, exporters and infrastructure operators up until 3 November,” Mr Keogh said.
Submissions can be made at Viterra wheat port exemption assessment.
The ACCC will make its final determinations after submissions have been considered.
Background
The Port Terminal Access (Bulk Wheat) Code of Conduct commenced on 30 September 2014 and regulates port terminal service providers to ensure that exporters of bulk wheat have fair and transparent access to port terminal facilities.
The ACCC may determine a service provider to be an ‘exempt service provider’ at a specified port terminal. Exempt service providers are ‘exempted’ from having to comply with Parts 3 to 6 of the code in the course of providing services from the specified terminal.
In making its determination, the ACCC is required to have regard to the matters listed at subclause 5(3) of the code, which include: the interests of exporters and the service provider; whether the service provider is an exporter (or associated with an exporter); the presence of other exempt service providers in the area; and competition in upstream and downstream markets.
Obligations under Parts 3 to 6 of the code include not discriminating in favour of an associated exporter or hindering exporter access to terminal services, seeking ACCC approval for capacity allocation systems, resolving access disputes through prescribed processes, and publishing information about capacity and stocks.
Exempt port terminal service providers are only required to comply with the general obligations in Parts 1 and 2 of the code, which require port terminal service providers to deal with exporters in good faith and fulfil several reporting obligations.
The ACCC has recently exempted a number of South Australian service providers. More information about the code and exemptions is available at Wheat export projects.
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2 October 2020Ticket reseller Viagogo AG has been ordered by the Federal Court to pay a penalty of $7 million for breaching the Australian Consumer Law by making false or misleading representations when reselling tickets for live music and sports event, in proceedings brought by the ACCC.
The Court found in 2019 that Viagogo made false or misleading representations to consumers that it was the ‘official’ seller of tickets to particular events, that certain tickets were scarce, and that consumers could purchase tickets for a particular price when this was not the case because significant fees, such as a 27.6 per cent booking fee, were not disclosed until late in the booking process.
From 1 May 2017 to 26 June 2017, Viagogo’s website attracted consumers by advertising a headline price which did not specify a total price for tickets. It also failed to adequately disclose to consumers that it was not a primary ticket seller.
Examples included a ticket for the Book of Mormon advertised at $135 but which was sold for $177.45 including booking and handling fees, as well as Ashes cricket tickets advertised at $330.15, but sold for $426.81 after fees were added.
In imposing the penalty of $7 million, Justice Burley described the misrepresentations as serious or very serious, and considered the conduct demonstrated a level of deliberateness. He described one category of representations as having been made on “an industrial scale”.
Viagogo’s responses were described by the judge as giving it “the appearance of being a company that is indifferent to the interests of Australian consumers and which prefers to elevate its own profit motives above those interests, even when on notice of the potential for harm being done”.
ACCC Chair Rod Sims said: “Viagogo’s business practices were unacceptable. Viagogo misled thousands of consumers into buying tickets at inflated prices when they created a false sense of urgency by suggesting tickets were scarce and when they advertised tickets at a lower price by not including unavoidable fees.”
The Court also observed the need for general and specific deterrence in this matter, particularly to make it clear to corporations which conduct internet-based operations in Australia that they are subject to the Australian Consumer Law (ACL).
“Today’s $7m penalty sends a strong signal to businesses like Viagogo conducting business in Australia that they cannot get away with profiting from misleading Australian consumers about the price of the tickets they are selling, or other misleading conduct.”
The Federal Court ordered an injunction against Viagogo, to reinforce the need for adherence to the ACL. The Court also ordered Viagogo to conduct a compliance program and pay the ACCC’s costs.
Background
Viagogo AG is an online ticket resell platform with headquarters in Switzerland.
The ACCC took action against Viagogo in August 2017, and in April 2019 the court found Viagogo had misled consumers.
The ACCC enforces the Australian Consumer Law which applies to tickets as well as other consumer goods and services. In recent years various state and territory governments have also introduced specific legislation regulating the reselling of tickets, such as maximum price caps.
The ACCC published guides for consumers on how to purchase event tickets with confidence at Buying tickets online.
Consumers with queries about their state or territory’s ticket reselling laws should contact their state or territory’s fair trading or consumer affairs agency.
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1 October 2020The ACCC will not oppose Dormakaba Australia Pty Ltd’s (Dormakaba) proposed acquisition of E Plus Building Products Pty Ltd (E Plus).
Both Dormakaba and E Plus supply key inputs in the fire doors industry. However the companies do not compete at the same level of the supply chain and there is no overlap between the products that they supply.
Dormakaba supplies a range of door hardware and components such as door closers, hinges, handles and locks. E Plus supplies fire cores which form the centre of all fire doors.
“The ACCC investigated whether Dormakaba could hinder rival door hardware suppliers from competing effectively, by denying them certification with E Plus’ fire core,” ACCC Commissioner Stephen Ridgeway said.
“We found that two alternative fire core suppliers would remain in the market with whom hardware suppliers can certify their products. This includes Assa Abloy, which also supplies door hardware and components, and Firecore, a standalone core supplier.”
The ACCC recognised that most hardware suppliers are currently certified with all three core suppliers. However, feedback from the market established that cores do not drive customer choice, that the three cores are largely homogenous, and that hardware suppliers would be able to compete for customers without being certified with all three.
“Even if Dormakaba stopped rival hardware suppliers from certifying with E Plus’ core, this would not substantially lessen competition due to the availability of the other major fire core suppliers,” Mr Ridgeway said.
Further information is available at: Dormakaba’s proposed acquisition of E Plus.
Background
The ACCC is concerned with non-horizontal acquisitions where the merged firm has the ability and incentive to use its position in one market to anti-competitively foreclose rivals in another market in a way that lessens competition.
Hardware and fire cores must be tested and certified together to adhere to Australian Standards for fire door sets. These standards dictate that the fire core supplier have control over the testing process, which enables core suppliers to control the hardware certified for use in combination with their fire core.
Dormakaba is part of the global Dormakaba Group. Its subsidiaries include Kilargo, Madinoz and Resolute Testing Laboratories, a fire door testing facility.
E Plus is an Australian-based supplier, and supplies the ‘E-Core’ fire door product. Certified E-Core based fire doors are distributed throughout Australia by licenced door manufacturers.
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Mergers

1 October 2020The ACCC has amended the Consumer Data Right Rules to permit accredited intermediaries to collect data on behalf of third party data recipients, with consumer consent.
These amended rules mean accredited businesses can now ask other accredited businesses to obtain consumer data on their behalf, and are intended to facilitate greater participation in the Consumer Data Right by fintech firms.
The changed rules will, for example, allow an accredited business to use outsourced IT infrastructure and software of an accredited intermediary to connect to data holders’ APIs, rather than have to build their own.
“This is the first in a series of measures to reduce the time and cost to enter and operate in the Consumer Data Right ecosystem,” ACCC Commissioner Sarah Court said.
“The rule changes also make it easier for businesses who currently rely on outsourced services to join the Consumer Data Right, and reflect our ongoing goal of facilitating a wide range of business arrangements within the Consumer Data Right.”
“All businesses being accredited by the ACCC go through a rigorous process to ensure they meet appropriate security requirements. These amendments do not change those rigorous controls,” Ms Court said.
“We are pleased by the interest already shown from businesses who want to join the Consumer Data Right.”
“We look forward to more and more businesses joining the Consumer Data Right ecosystem, and delivering increased competition and innovation for consumers and the wider Australian economy,” Ms Court said.
New Rules consultation announced
The ACCC has also this week announced consultation on proposed new consumer data rules. This includes proposals for new levels of accreditation, expanding the Consumer Data Right to business customers and a range of other measures. Details of the consultation and guidance on how to participate in the consultation process have been published in the CDR newsletter and on the ACCC website.
Background
The ACCC made the Competition and Consumer (Consumer Data Right) Amendment Rules (No. 2) 2020 in February.
The intermediaries rules have been made following consent from the Treasurer and will come into effect on 2 October 2020.
These amendments expand the provisions that relate to use of outsourced service providers.
Consumers will be informed during the consent process if an intermediary provider may collect their CDR data, and must be shown the provider’s name and accreditation number.
The ACCC is progressing enhancements to the Consumer Data Right Register to accommodate the amendments, which will be available to new and existing accredited data recipients from November 2020. The amendments do not impose additional build requirements for banks as data holders.
Release number: 205/20ACCC Infocentre: Use this form to make a general enquiry.
Media enquiries: Media team – 1300 138 917
Topics

Consumer data right

1 October 2020The Federal Court has dismissed the ACCC’s consumer law case against workplace relations advisor Employsure Pty Ltd, finding that it did not engage in misleading marketing or behave unconscionably in dealings with small businesses.
The ACCC alleged that, between August 2016 and November 2018, Employsure misrepresented to small business consumers that it was, or was affiliated with, a government agency, using Google Ads and through statements on its websites.
The Google Ads featured headlines such as ‘Fair Work Ombudsman Help – Free 24/7 Employer Advice’ and ‘Fair Work Commission Advice – Free Employer Advice’ and appeared in response to search terms such as ‘fair work ombudsman’.
The ACCC also alleged that Employsure represented to consumers that it provided a helpline for free workplace relations advice and the primary purpose of the helpline was to provide this free advice when in fact the primary function of that helpline was to secure marketing leads to sell Employsure’s paid services.
“We took this case because the ACCC had received over 100 complaints relating to Employsure, raising concerns including alleged misleading conduct, unfair sales tactics and unfair contract terms,” ACCC Commissioner Sarah Court said.
“We were particularly concerned that Employsure’s ads gave the impression that Employsure was a government agency or affiliated with government. Any attempt to misrepresent a business as being part of the government is a serious breach of trust, and of our consumer laws.”
However, the Court found that the ads were not misleading and considered that a  reasonable business owner would not infer an affiliation with government existed. This includes because the word “Ad” accompanied by a .com (not .gov) URL appeared and “fair work” has a broad descriptive meaning not limited to government agencies.
Further, from Employsure’s perspective, the function of the helpline was to give business owners the opportunity to obtain free advice in order for Employsure to secure the opportunity to make a pitch to those businesses for new clients.   
The Court found that a reasonable business owner would appreciate that the helpline was operated by a private company and therefore likely served a commercial purpose.
The ACCC also alleged that Employsure acted unconscionably toward three small businesses who contacted Employsure after ‘googling’ the Fair Work Ombudsman or a related government agency and believed they were speaking with someone associated with a government agency. They were each ultimately signed up to long-term contracts with Employsure for a significant fee.
The Court found that Employsure did not act unconscionably in its dealings with these businesses. The Court considered that while the conduct might be described as forceful marketing, it was not, in the circumstances relevant to each business, contrary to the norm of conscientious behaviour.
The Court also dismissed the ACCC’s case that certain terms in three of Employsure’s standard form contracts were unfair.
“We will carefully consider the judgment,” Ms Court said.
Background
Employsure is a private company that offers employment relations and workplace health and safety advisory services to business owners. It has no affiliation with any government agency. 
The ACCC instituted proceedings against Employsure in December 2018.
 
An example of the Google Ads run by Employsure

Release number: 206/20ACCC Infocentre: Use this form to make a general enquiry.
Media enquiries: Media team – 1300 138 917
Audience

Media

Topics

Competition and Consumer Act 2010