Container-trucks-lined-up-at-Port-Botany-ABC

ACCC orders stevedores to change unfair contracts

Three container stevedore companies have amended their contracts with land transport businesses after the ACCC raised concerns that certain terms in each of these agreements may be unfair contract terms.
DP World Australia, Hutchison Ports Australia and Victoria International Container Terminal (VICT) agreed, after the ACCC’s intervention, to remove or amend terms in their standard form contracts that the ACCC considered were likely to be considered ‘unfair’ within the meaning of the Australian Consumer Law.
DP World and Hutchison had contract terms that allowed a stevedore to unilaterally vary terms in the agreements without notice, including fees paid by the land transport operators.
DP World and Hutchison also had terms that limited their liability for loss or damage suffered by the transport businesses, while not offering the transport businesses the same protections. VICT’s contract had a term requiring transport businesses to indemnify VICT for loss or damage, with no reciprocal obligation on VICT.
DP World’s standard agreement also required the transport businesses to pay the stevedore’s legal costs and expenses, in circumstances where such payments would normally be determined by court order.
The three stevedores cooperated with the ACCC’s investigation and agreed to remove or amend the terms. Hutchison has made its commitments in a court enforceable undertaking and will also place a corrective notice on its website and put in place a compliance program.
Those contract terms which previously allowed the stevedore to amend the contract without notice have either been removed, or now require the stevedore to give 30 days’ notice of any changes, including for any price rises.
“Thousands of transport businesses, which have standard form agreements with DP World, Hutchison and VICT, stand to benefit from these changes,” ACCC Commissioner Sarah Court said.
“The handling of containers has a direct bearing on the cost of goods in Australia and the competitiveness of Australian exports, so it is crucial for businesses and consumers that the supply chain operates fairly and efficiently.”
The ACCC launched its investigation in early 2018 following concerns being raised about alleged unfair terms in contracts between container stevedores and land transport operators, such as rail and trucking businesses.
The ACCC’s 2018 Container Stevedore Monitoring Report noted the ACCC was assessing unfair contract terms within the industry. The ACCC has now concluded that assessment.
The court enforceable undertaking given by Hutchison can be found at Hutchison Ports Australia Pty Limited.

Stevedores are charging truckers, shippers

The ACCC is calling on state governments to regulate the stevedoring industry.
A record 5.1 million containers were lifted at the monitored ports last financial year, but profit margins in the container stevedoring industry suffered (on charges collected from lines), according to the ACCC’s 20th annual container stevedoring monitoring report.
In 2017–18 the average prices charged to shipping lines fell further, resulting in a drop in profit margins to a low of 4.5 per cent, while productivity remained largely unchanged. Meanwhile, stevedores increased ‘infrastructure charges’ that likely add costs to the supply chain.
“The stevedoring industry has changed significantly over time, with large increases in productivity and reductions in costs since the ACCC started monitoring the industry 20 years ago, but challenges remain,” ACCC chairman Rod Sims said.
Shipping lines have been able to negotiate cheaper rates because of growing competition between stevedores and consolidation in the shipping line industry, resulting in an 8.5 per cent fall in quayside revenue per lift for stevedores.
Stevedores continued to rapidly increase ‘infrastructure charges’ applied to truck and rail companies delivering or collecting containers at port, which has led to strong criticism from transport operators and cargo owners.
Stevedores have justified these charges with increases in operating costs and the need to invest in infrastructure to handle the increasingly large ships visiting Australian ports.
It is not unreasonable for stevedores to recover some costs for investment in container terminal facilities. However, transport operators and cargo owners are limited in being able to respond to higher stevedore charges by taking their business elsewhere, unlike shipping lines.
“The use of infrastructure charges means that stevedores can earn a greater proportion of their revenues in a market in which their market power is stronger relative to the more competitive market in which they provide services to shipping lines,” Mr Sims said.
“We are concerned about the potential impact of these charges. If stevedores do not face a competitive constraint on their prices, it will leave consumers paying higher charges for goods and make exporters less competitive,” Mr Sims said
The ACCC does not have the power to determine stevedoring charges as they are not a regulated asset.
“State governments, which regulate stevedores and ports, may need to conduct further detailed examination and, if warranted, use their regulatory powers,” Mr Sims said.
“We do not have sufficient information about the broader supply chain to conclusively determine if regulation would be appropriate. We note that the profitability of stevedores has continued to fall despite the increases in infrastructure charges.”
Two stevedores, DP World and Flinders Adelaide, commenced extensive capital expenditure in 2017–18, with very little investment from other stevedores.
In 2017–18, productivity performance remained mixed; while labour and multifactor productivity improved slightly, capital productivity fell slightly. Truck turnaround times continued to improve in Melbourne, but deteriorated slightly in Sydney.
The ACCC’s report is available here.
Background
The ACCC has monitored the container stevedoring industry since 1998-99 under a direction from the Australian Government. Container stevedoring involves lifting containers on and off ships. The ACCC currently monitors the prices, costs and profits of container stevedores at five Australian container ports.
Patrick and DP World operate at the four largest ports—Brisbane, Fremantle, Melbourne and Sydney. Hutchison operates in Brisbane and Sydney, while VICT commenced operations in Melbourne in early 2017. Flinders Adelaide is the sole terminal operator at the Port of Adelaide.

Linfox can buy Aurizon’s Queensland intermodal business: ACCC

The ACCC has acknowledged Aurizon’s sale of its Queensland intermodal business to Linfox.
The ACCC has considered the Linfox proposal, and has decided that a public review of the transaction is not required, as it does not consider the acquisition by Linfox will give rise to a substantial lessening of competition.
“Linfox’s operations in Queensland are relatively limited, and the transaction will mean there will remain two intermodal rail line-haul providers in Queensland, which is a good outcome for rail competition and Queenslanders,” ACCC chairman Rod Sims said.
Aurizon had previously announced that it would shut the Queensland intermodal business if it couldn’t progress the earlier transaction proposal involving Pacific National.
Under the earlier transaction proposal, it planned to sell the rail component of the Queensland intermodal rail business to Pacific National, its only competitor in intermodal rail in Queensland.
“The ACCC did not consider that Aurizon’s shut-down plans were rational given there were other options,” Mr Sims said.
“The sale of the Queensland intermodal business demonstrates why the ACCC must always question claims that businesses will be shut if we don’t approve a merger.”
The ACCC litigation concerning the sale of Acacia Ridge Rail Terminal to Pacific National and Aurizon’s intermodal sale process is continuing.
 

Siemens, Alstom rail merger troubles the ACCC

The ACCC has expressed preliminary concerns about the proposed merger of Siemens A.G.’s (Siemens) Mobility Division with Alstom S.A. (Alstom), which are detailed in a Statement of Issues published today.
“A combined Siemens-Alstom would be by far the largest supplier of heavy rail signalling in Australia,” ACCC chairman Rod Sims said.
The ACCC’s review has focused on signalling systems for heavy rail passenger networks, particularly train interlocking systems and automatic train protection (ATP) systems. Signalling systems provide safety and traffic management controls on rail networks. Interlockings are the core of a signalling system; they set routes for the safe movement of trains across railway lines. Train protection systems ensure that trains comply with movement authorities issued by the interlockings.
“The ACCC’s preliminary view is that the proposed merger may substantially lessen competition in the supply of heavy rail signalling systems for passenger rail networks in Australia, in particular interlocking systems and ATP systems. The loss of competition could result in increased prices for customers, or lower levels of service, quality, or innovation,” Mr Sims said.
“We have heard from many industry participants who have expressed competition concerns with the merger. We will continue to evaluate the competitive options available to passenger rail networks in Australia.”
The proposed merger is also being reviewed by overseas competition regulators, including the European Commission.
“The ACCC is liaising closely with overseas competition regulators, as some of these potential competition issues may also arise in other countries,” Mr Sims said.
The ACCC has invited further submissions from interested parties in response to the Statement of Issues by 20 September 2018. The ACCC’s final decision is due on 29 November 2018.
Background
Siemens is a listed German conglomerate headquartered in Munich. Its Mobility Division is one of eleven business divisions. Siemens acquired signalling supplier Invensys Rail in 2013 and Perth-based MRX Technologies in 2017.
Alstom is a French société anonyme listed on the Euronext Paris stock exchange. In 2015, Alstom acquired GE’s signalling business.
Siemens and Alstom are both active in the rail mobility industry globally and each supplies rail signalling systems, rolling stock and rail electrification services in Australia. The key area of overlap between the parties in Australia is in the supply of rail signalling systems.

Fuel prices hit four-year high as retailers boost margins

Average petrol prices increased by seven per cent in the past three months, hitting a four-year high in real terms of around 145 cents per litre (cpl) in Australia’s largest cities (Sydney, Melbourne, Brisbane, Adelaide and Perth), according to the ACCC’s latest petrol monitoring report.
Annual average prices in the five largest cities in real terms steadily fell between the 2013-14 and 2016-17 financial years. However, in 2017-18 the average price of petrol increased overall by nearly 10 per cent compared with the previous year.
“The major factors driving higher prices were an increase in international crude oil and refined petrol prices, and a lower AUD-USD exchange rate,” ACCC chairman Rod Sims said.
“The OPEC cartel in particular continues to have a damaging effect on Australian petrol prices. In late-2016 OPEC, and some other crude oil producing countries, agreed to cut production. This restricted supply into the market, which has clearly started to bite through steadily increasing petrol prices in the past financial year.
“A weaker Aussie dollar has also increased costs for wholesalers buying petrol for the Australian market, which flows through to consumers who pay for this at the pump,” Mr Sims said.
While higher global oil prices are the major factor, the ACCC report also shows that the gross margins Australian petrol retailers are obtaining for every litre sold are also adding to the price pressure motorists experience. Average gross retail margins hit a record high in 2017-18. Annual average gross indicative retail differences (GIRDs), a broad indicator of gross retail margins, in the five largest cities in 2017-18 were 12.4 cpl. This is 4.3 cpl higher than the average in real terms over the last 16 years.
“Current gross retail margins in the five largest cities are now over 50 per cent above the 16 year average since the ACCC began tracking this data,” Mr Sims said.
Brisbane motorists continue to pay the highest price for petrol of the five major cities. This continues a trend that has seen Brisbane prices being the highest of the five major cities for 18 of the past 24 months.
Regional petrol prices
The average differential between prices in the regional locations the ACCC monitors and the five largest cities fell by 1.0 cpl in 2017-18, compared with 2016-17. However, motorists in these regional locations were still paying an average of 4.4 cpl more for their petrol in 2017-18.
The ACCC has undertaken four regional petrol market studies in Darwin, Launceston, Armidale and Cairns and continues to monitor prices and margins in these locations.
“In all these locations, gross retail margins and prices continue to remain high. However it’s worth noting that prices in Cairns, while still high, are getting more competitive. This correlates with more vigorous competition following independent retailer United increasing its presence in the Cairns area,” Mr Sims said.
“This example demonstrates the value for consumers of having competition in petrol markets.”
Background
The ACCC collects retail petrol prices for all capital cities and over 190 regional locations across Australia.
On 20 December 2017, the Treasurer issued a new direction to the ACCC to monitor the prices, costs and profits relating to the supply of petroleum products and related services in the petroleum industry in Australia.
Under the new direction, the ACCC produces quarterly petrol monitoring reports focusing on price movements in the capital cities and over 190 regional locations across Australia. It also produces industry reports that focus on particular aspects of consumer interest in the fuel market in relation to prices, costs and profits. Today’s report was the fourth issued under the direction.
Gross retail margins are the difference between average retail prices and average wholesale prices. As they do not include costs, gross retail margins should not be confused with actual retail profits. These margins are averages across the five largest cities over time. The level of prices, costs and profits vary significantly between retail operations and not all petrol retailing sites will be achieving these margins. Some will be achieving higher margins, others lower.

Annual average GIRDs in the five largest cities in real terms: 2002-03 to 2017-18. The analysis about savings from price cycles was not undertaken for Perth because it has regular weekly price cycles.

Aurizon must carry on with intermodal business: ACCC

The Federal Court has ordered that Aurizon must continue operating its Queensland intermodal business while the ACCC’s case against Pacific National and Aurizon is heard and determined.
The ACCC instituted proceedings in July this year against Pacific National and Aurizon, and their related entities, for allegedly reaching an understanding about Aurizon’s intermodal business that had the purpose and/or would be likely to have the effect of substantially lessening competition in the supply of intermodal and steel rail linehaul services.
In addition, the ACCC alleges that Pacific National’s proposed acquisition of Aurizon’s Queensland intermodal business and the Acacia Ridge Terminal, as well as an agreement for Pacific National to operate the interstate side of the Acacia Ridge Terminal, would each separately have the likely effect of substantially lessening competition.
Following today’s hearing, the ACCC has been granted injunctions against Aurizon which require it to continue to operate its Queensland intermodal business.  The ACCC also sought orders for injunctions against Pacific National not to solicit employees and the top 10 customers of the business until the court proceedings are finalised, however those orders were not made.
“Given Aurizon’s previous announcements that it would close its Queensland intermodal business if the Pacific National acquisition was opposed by the ACCC, the ACCC sought an urgent interlocutory injunction to prevent Aurizon from closing its Queensland intermodal business until the ACCC’s proceedings involving that business are determined by the Court,” ACCC Chair Rod Sims said.
“It is part of the ACCC’s case that, at all times, Aurizon had alternatives to selling to Pacific National that would have been more competitive. The ACCC is aware of at least one alternative purchaser that is willing and able to acquire Aurizon’s entire remaining intermodal business.”
The final proceedings have been set down for a two week hearing starting on 19 November 2018.
“The ACCC will allege that it was more lucrative for Aurizon to agree to sell parts of the intermodal business to the closest competitor and close parts of that business than it was to sell the whole intermodal business to a new entrant,” Mr Sims said.
 

Aurizon Acacia Ridge intermodal rail terminal

Pacific National, Aurizon fall foul of the ACCC

The ACCC has instituted proceedings in the Federal Court against Pacific National and Aurizon, and their related entities, for allegedly reaching an understanding in relation to Aurizon’s intermodal business that had the purpose and/or would be likely to have the effect of substantially lessening competition in the supply of intermodal and steel rail linehaul services.
“The ACCC alleges that in July 2017 Pacific National and Aurizon reached an understanding that would lead to Aurizon exiting its intermodal business through a combination of closure and transactions with Pacific National. The effect of the understanding was that Aurizon would stop competing with Pacific National to supply intermodal and steel rail linehaul services throughout Australia,” ACCC chairman Rod Sims said.
The ACCC also alleges that Pacific National’s proposed acquisition of Aurizon’s Queensland intermodal business and the Acacia Ridge Terminal, as well as an agreement for Pacific National to operate the interstate side of the Acacia Ridge Terminal, would separately each have the likely effect of substantially lessening competition.
The ACCC is seeking declarations, pecuniary penalties, orders restraining Pacific National from acquiring the Acacia Ridge Terminal and Aurizon’s Queensland intermodal business, and costs. The ACCC has also applied for an injunction to prevent Aurizon from closing its Queensland intermodal business while the case is being determined.
Aurizon intermodal sale process
During the first half of 2017, Aurizon engaged in a sales process for its intermodal business. That business consisted of several interconnected components, including the Acacia Ridge Terminal, and its interstate intermodal and Queensland intermodal businesses (which both depend on access to the Acacia Ridge Terminal).
The ACCC alleges that, in late July 2017, Pacific National and Aurizon reached an understanding and Aurizon terminated its sales process with other bidders.
The ACCC alleges that the understanding involved Pacific National obtaining control of Acacia Ridge Terminal, either by PN acquiring the terminal or, if that was prevented by the ACCC, by a long term contract appointing it as operator of the interstate side of the terminal, commencing 1 December 2018.
The ACCC also alleges that the understanding involved Pacific National becoming the exclusive bidder for Aurizon’s Queensland intermodal business, but that if Pacific National did not acquire that business, Aurizon would close it.
The ACCC alleges that Pacific National and Aurizon gave effect to this understanding by executing formal contracts including contracts for the sale of the Acacia Ridge Terminal and the operation of the Acacia Ridge Terminal (the Terminal Services Subcontract), and to negotiate exclusively for the sale/purchase of the Queensland intermodal business. Subsequently, Pacific National and Aurizon entered into an agreement for Pacific National to acquire the Queensland intermodal business.
In addition, Aurizon announced the closure of its interstate intermodal business on 14 August 2017. The business was closed by December 2017.
Earlier this year, Aurizon announced that it would close its Queensland intermodal business if the ACCC opposed the proposed acquisition by Pacific National.
The ACCC alleges that the closure of Aurizon’s interstate intermodal business and the planned closure of the Queensland intermodal business is a direct and expected consequence of the understanding reached with Pacific National.
The ACCC’s competition concerns
“Pacific National and Aurizon are the only providers of intermodal rail linehaul on the North Coast Line servicing northern Queensland. The ACCC alleges that the understanding, the proposed acquisitions by Pacific National and the agreement appointing Pacific National as operator of the Acacia Ridge Terminal would have the effect of creating a monopoly on that route,” Mr Sims said.
“Further, Pacific National and Aurizon were, at the time of the understanding, two of only three competitors on interstate routes. We consider that Aurizon’s closure of its interstate intermodal business substantially lessened competition on those interstate routes.
“At all times, Aurizon had alternatives to selling to Pacific National that would have been more competitive. The ACCC is aware of at least one alternative purchaser that is willing and able to acquire Aurizon’s entire remaining intermodal business,” Mr Sims said.
“However, the evidence makes it clear that it was more lucrative for Aurizon to agree to sell parts of its intermodal business to its closest competitor, and close other parts of that business, than it was to sell the whole intermodal business to a potential new entrant.”
“Given Aurizon’s announcement that it will close its Queensland intermodal business if the Pacific National acquisition is opposed by the ACCC, in circumstances where there is at least one alternative purchaser, the ACCC is seeking an interlocutory injunction to prevent Aurizon from closing this business until the matter is determined by the Court,” Mr Sims said.
Proposed undertaking
During the ACCC’s review, Pacific National sought to address the ACCC’s concerns relating to its proposed acquisition of the Acacia Ridge Terminal by offering a court enforceable undertaking that it would not discriminate in providing access to the Acacia Ridge Terminal.
“The ACCC is of the view that the long term behavioural undertaking offered by Pacific National is not capable of addressing the ACCC’s concerns about the loss of competition resulting from the alleged understanding or Pacific National’s proposed acquisitions of Aurizon’s Queensland intermodal business and the Acacia Ridge Terminal,” Mr Sims said.
Further information is available at Pacific National Pty Ltd / Linfox – proposed acquisitions of Intermodal assets from Aurizon.

Australia’s national truck laws must be substantially redrafted, the Australian Trucking Association said in response to the first issues paper of the Heavy Vehicle National Law (HVNL) review.

Don't sell WestConnex: ATA

The ACCC should not approve the sale of WestConnex to Sydney Transport Partners (STP), because in the long run it would push up truck tolls even further, the chairman of the Australian Trucking Association Geoff Crouch said.
“Transurban is the majority interest holder in STP. It already holds, or has majority control of, 15 of the 19 toll road concessions in Australia,” Mr Crouch said.
In a submission to the ACCC, the ATA said the proposed acquisition would reduce competition for the construction, ownership and operation of toll roads in NSW. The ATA said it would give Transurban an increased ability to secure new toll road concessions based on increasing the heavy vehicle multiplier on its existing toll road assets.
In Sydney, the NSW Government’s tolling principles require truck tolls to be at least three times higher than car tolls, and Transurban has demonstrated a willingness to use interstate truck toll multipliers as part of its case for increasing local multipliers.
“The 16,000 hardworking trucking businesses in New South Wales cannot afford the truck tolls they are charged now. The proposed sale would inevitably result in tolls becoming even higher,” Mr Crouch said.
“Motorists have the ability to hop on the train or catch the bus if they wish to avoid toll roads, but a freight transporter can’t strap their load to the back of a bicycle and hope for the best,” he said.
Mr Crouch dismissed the argument that high truck tolls simply reflected the increased road maintenance cost caused by heavy vehicle use.
“For a fully laden, six-axle articulated truck, the estimated marginal cost of road wear on an urban toll road is 16 cents per kilometre. On the M7, for example, the truck toll of $1.19 per kilometre is more than seven times the actual cost,” he said.
Read the ATA submission here.
 

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