The ACCC can ‘authorise’ businesses to engage in anti-competitive arrangements or conduct when it is satisfied that the public benefit from the arrangements or conduct outweighs any public detriment. Authorisation provides protection from legal action under the Competition and Consumer Act.
The ACCC may, if the relevant public benefit test is met, authorise conduct that might constitute:
- a cartel provision
- an exclusionary provision (primary boycott)
- an anti-competitive agreement
- a secondary boycott
- exclusive dealing
- resale price maintenance
- anti-competitive disclosures of pricing and other information
- an acquisition that occurs outside of Australia
- dual listed company arrangements that affect competition.
Applications for merger authorisations are made to the Australian Competition Tribunal.
- The authorisation process begins once a valid application is received, which includes receipt of the appropriate forms and lodgement fee.
- The ACCC will generally conduct a public consultation process inviting submissions on the application from interested parties.
- Before issuing its final decision the ACCC must issue a draft determination stating whether it proposes to grant or deny authorisation, whether any conditions are proposed and setting out the reasons for its proposed decision.
- The applicant for authorisation and interested parties are invited to respond to the draft determination, either by providing written submissions or by calling a pre-decision conference. A pre-decision conference gives the applicant or interested parties an opportunity to discuss the draft decision and to put their views directly to an ACCC commissioner.
- The ACCC then makes a final determination, which may grant authorisation, grant authorisation subject to conditions or deny authorisation.
This authorisation process is public and the application for authorisation, all relevant submissions by the applicant and interested parties and the ACCC's draft final determinations are placed on the authorisations public register.
Applicants and interested parties providing information to the ACCC regarding an authorisation may make a claim for confidentiality and ask that the information, or parts of it, be excluded from the public register.
The lodgement form cannot be excluded from the public register.
The ACCC must make a determination in relation to new applications for authorisation within six-months of the application being validly lodged. The six-month time limit does not apply to applications for revocation, revocation and substitution or minor variation. However the ACCC does also endeavour to consider these applications within six months.
Once the six-month time period has begun, the ACCC may only accept minor amendments to an application. Consultation with interested parties will take place according to strict deadlines for the submission of information.
The six-month period can be extended by up to a further six months if the ACCC has issued a draft determination and the applicant agrees to the extension.
For a proposed collective bargaining arrangement, businesses can lodge an application for authorisation using Form B to obtain protection from legal action under the cartel and anti-competitive conduct provisions in the Act.
The ACCC has introduced a streamlined authorisation process for small businesses proposing collective bargaining arrangements.
Under the streamlined authorisation process the ACCC undertakes to respond to requests for interim authorisation and issue a draft determination within 28 days of receiving a valid application on and will finalise its consideration within three months.
In some cases, as an alternative to lodging an application for authorisation, businesses may be able to lodge a collective bargaining notification.
Authorisation or notification?
The authorisation process is likely to be more suitable than lodging a notification for a proposed collective bargaining arrangement when:
- all members of the bargaining group cannot be identified or might change over time
- there is more than one supplier or customer (target) with whom the group wishes to negotiate
- the annual value of the transactions each member of the bargaining group will have with the target is greater than $3 million (the transaction threshold differs for some industries)
- the exemption under the Act is required for more than three years.
Before lodging an authorisation application, applicants are strongly encouraged to contact the ACCC on 02 6243 1368 or at firstname.lastname@example.org to discuss their application.
Applications should be lodged on the appropriate form and accompanied by the relevant fee, if applicable.
Applications can be lodged at any ACCC office by mail or in person.
Applications can also be lodged by email or by fax to (02) 6243 1211. Applications lodged by email or fax should be accompanied by a covering letter that includes details of how and when the lodgement fee will be paid.
Authorising and notifying cartel conduct
Authorising and notifying disclosure of pricing and other information
Streamlined collective bargaining process for small business
Guidelines for excluding information from the public register for authorisation, merger clearance and notification processes
What you need to know about: Authorisation
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