Notifications

Notification is an alternative process to authorisation where parties that propose to engage in certain conduct may seek protection from legal action under the Competition and Consumer Act, if the conduct is in the public interest.

Collective bargaining notifications

Collective bargaining is an arrangement where two or more competitors come together to negotiate terms and conditions (which can include price) with a supplier or a customer (the target).

The protection from legal action provided by a collective bargaining notification commences automatically 14 days after the notification is validly lodged, unless the ACCC objects to the notification within the 14 day period.

In general the ACCC will assess a collective bargaining notification to determine whether the benefit to the public that is likely to result outweighs the likely detriment to the public.

There are some circumstances when it will not be suitable to lodge a notification for proposed collective bargaining conduct and businesses may wish to consider lodging an application for authorisation instead.

Authorisation or notification?

The notification process is likely to be more suitable than lodging an application for authorisation for a proposed collective bargaining arrangement when:

  • all members of the bargaining group are identified and are unlikely to change over time
  • there is a single 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 under the collective arrangement is not greater than $3 million (the transaction threshold differs for some industries)
  • the exemption under the Act is required for less than three years.

Who can lodge a collective bargaining notification?

Any party to a collective bargaining arrangement can lodge a notification on behalf of:

  • their business, or
  • the other business(es) that will be a party to the arrangement.

Collective bargaining notifications may also be lodged by a nominated representative who is not a member of the collective bargaining group. For example, an industry association may lodge a notification on behalf of its members.

When a notification is lodged on behalf of other businesses who are party to the collective bargaining arrangement, the notification must clearly identify all of the businesses involved and show that they all consent to the lodging of the notification on their behalf.

To lodge a valid collective bargaining notification each party to the collective arrangement must reasonably expect that the total value of the transactions it will conduct with the target over a 12-month period under the arrangement will not be greater than $3 million (or higher amounts as set by regulations).

Collective bargaining notification form

A collective bargaining notification must be lodged on:

Notifying parties are encouraged to provide a detailed submission in support of the notification.

Hypothetical examples

The ACCC has prepared two hypothetical examples to assist small business in completing the paperwork to lodge a collective bargaining notification. While these examples may assist, small businesses should make sure they look at the circumstances of their own proposal. The ACCC is always happy to discuss potential notifications.

Each hypothetical applicant has taken a different approach to suit their own needs. You may wish to pick and choose or take a different approach altogether.

The first Hypothetical Form GA one (hotels) [ pdf (74.86 KB) ]- lodged by a hypothetical association - looks at proposed arrangements between local hotels in their negotiations with a supplier of beer. To demonstrate the agreement of the participants, the applicant has attached a statement of consent from each.

The second Hypothetical form GA two (citrus) [ pdf (74.88 KB) ]- also lodged by a hypothetical association - involves local citrus growers in their dealings with two different packers. While they will be considered as two separate notifications, they are notified on the one form. To avoid additional fees, the applicant has asked that they be considered as related applications. The association has chosen a legal adviser to assist and to be the contact for further information. A record of meeting has been provided to demonstrate the agreement of the participants.

Exclusive dealing notifications

Exclusive dealing broadly involves one trader imposing restrictions on another's freedom to choose with whom, or in what, or where they deal.

Some forms of exclusive dealing will only raise concerns under the Act if they substantially lessen competition.

One form of exclusive dealing – known as third line forcing – is prohibited per se, meaning that it is prohibited no matter what its effect on competition.

Third line forcing involves the supply of goods or services, or the supply of goods or services at a particular price or discount, on condition that the purchaser acquires goods or services from a particular third party, or a refusal to supply because the purchaser will not agree to that condition.

Third line forcing

For a third line forcing notification the protection from legal action commences 14 days after a valid notification is lodged.

The ACCC may at any stage remove the protection provided by a third line forcing notification if the likely benefit to the public from the notified conduct would not outweigh the likely detriment to the public resulting from the conduct.

Exclusive dealing other than third line forcing

For a notification concerning exclusive dealing conduct other than third line forcing, the protection from legal action commences on the date a valid notification is lodged.

The ACCC may remove the protection from legal action provided by a notification for exclusive dealing conduct other than third line forcing if it is satisfied that the proposed conduct will result in:

  • a substantial lessening of competition and
  • the public benefit that may result from the proposed conduct would not outweigh the detriment to the public caused by the lessening of competition.

Who can lodge an exclusive dealing notification?

Exclusive dealing notifications can only be lodged by the party engaging in exclusive dealing conduct.

Exclusive dealing notification form

An exclusive dealing notification must be lodged on:

Notifying parties are encouraged to provide a detailed submission in support of the notification.

Supplier arrangements

The ACCC is often asked to consider whether arrangements that force individuals or businesses to buy goods or services from nominated suppliers will breach the Act. For example, franchisors often require franchisees to purchase goods or services from particular suppliers as a condition of being part of the franchise system. Similarly, sporting associations sometimes limit the suppliers clubs and participants can buy team wear and equipment from as a condition of taking part in the sport.

There are some cases when supplier arrangements are unlikely to breach the Act and will not require authorisation or notification. For example, if a franchisor or association sets objective quality and consistency standards and allows members to purchase products from any supplier that meets those standards, then competition is unlikely to be affected.

However, if a franchisor or association enters into exclusive licensing arrangements with suppliers and requires members to purchase only from these suppliers, competition may be affected and the arrangements may breach the Act.

Further information exclusive supplier arrangements and competition is available at:

Private disclosure of pricing information notifications

Provisions against anti-competitive price signalling and information disclosures came into effect on 6 June 2012.

Currently these provisions only apply to the banking sector and only in relation to the taking of money on deposit and making advances of money or loans.

A notification can be lodged in relation to a disclosure of information which may breach s. 44ZZW which relates to the private disclosure of pricing information to a competitor where the disclosure is not in the ordinary course of business.

Legal protection for the notified conduct commences automatically 14 days after the notification is validly lodged, unless the ACCC formally objects within that period.

The ACCC may revoke, or prevent (if within 14 days), the legal protection provided by a notification if the ACCC is satisfied that the likely public benefit will not outweigh the likely public detriment from the proposed disclosure.

A notification of a private disclosure of pricing information to competitors should be lodged on:

Notifying parties are encouraged to provide a detailed submission in support of the notification.

Notification is a public process

The notification process is public and the notification and all relevant submissions by the notifying party and interested parties are placed on the notifications public register.

Notifying parties and interested parties providing information to the ACCC regarding a notification may ask that the information, or parts of it, be excluded from the public register because it is confidential.

The lodgement form cannot be excluded from the public register.

Lodging a notification

Notifications can be lodged at any ACCC office by mail or in person.

Notifications should be lodged on the appropriate form and accompanied by the relevant fee.

Notifications can also be lodged by email to adjudication@accc.gov.au or by fax to (02) 6243 1211. Notifications 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.

Related publications

More information

Anti-competitive behaviour
Applying for exemptions