ss. 52, 53(a) and 53(c) misleading or deceptive conduct
13 October undertaking in relation to the company’s labelling of its ‘Sherpa’ brand thermal underwear garments. The undertakings address ACCC concerns that in supplying thermal underwear garments with misleading and false fibre content labelling, Sherpa Outdoor Equipment Pty Limited may have breached the Trade Practices Act 1974.
In November 1999 Sherpa also formally entered into an undertaking pursuant to section 87B of the Act with the ACCC. The ACCC has informed Sherpa that upon execution of the 2004 undertaking by the ACCC, the ACCC consents to Sherpa’s withdrawal of the 1999 undertaking.
In the 2004 undertaking Sherpa acknowledges that it may have contravened ss. 52, 53(a) and 53(c) of the Act and undertakes to:
refrain from supplying mislabelled thermal underwear garments and from supplying these garments in packaging that contains false representations about their fibre content
engage an accredited textile testing agency to test each and every batch of thermal underwear garments for fibre content prior to making any representations that relate to the fibre content of the garments
ensure all suppliers it chooses to source thermal underwear garments from are fully aware of the fibre content labelling requirements of the relevant Australian Standard and the terms of Sherpa’s undertaking to the ACCC
by way of a corrective notice in a major daily newspaper in New South Wales, Victoria and Tasmania, notify consumers who have been misled by the fibre content labelling of the thermal underwear garments it has supplied, that it will offer them refunds or replacement goods
relabel any mislabelled stock and packaging it has in its warehouse and contact those retailers it supplied to assist them to do the same
implement an upgraded corporate trade practices compliance program with particular emphasis on its labelling practices.
Daikin Australia Pty Ltd
ss. 52, 53(c) and 55 misleading and deceptive conduct
12 October 2004 undertaking in relation to representations about airconditioning units in brochures. Daikin Australia Pty Ltd has undertaken to not make the representations for a period of five years and place corrective advertisements on its website. It has also undertaken to:
write and distribute letters explaining the undertaking to Daikin's distributors and to the Australian Airconditioning and Refrigeration Equipment Manufacturers Association
review its existing trade practices compliance program and ensure provision of training in respect of environmental claims for sales and marketing staff and company officers responsible for compliance.
South Pacific Industrial Pty Ltd
s. 65AB general country of origin claims
21 October 2004 undertaking in relation to representations about its Breeze 700H boat winch. During 2003 South Pacific Industrial Pty Ltd represented that its Breeze 700H boat winch was made in Australia, whereas the winch was only assembled in Australia from imported parts.
This undertaking provides, among other things, for the company to cease its conduct and to in future only make Made in Australia claims after it has first met the test for such claims as set out in s. 65AB of the Trade Practices Act.
FUJIFILM
ss. 48, 96–100 resale price maintenance
26 October undertakings from FUJIFILM Australia Pty Ltd (formerly Hanimex Pty Limited) and Peter Isherwood a former employee of Hanimex Pty Limited.
Hanimex made an application to the ACCC under its Co-operation Policy for Enforcement Matters in relation to conduct of Mr Isherwood that Hanimex was concerned may have involved Hanimex in contraventions of the resale price maintenance provisions of the Trade Practices Act 1974.
Hanimex has undertaken that it will:
implement a trade practices compliance program
write to all of its direct markets customers of digital cameras advising them that Hanimex does not seek to control the price at which resellers sell digital cameras and that resellers are free to sell digital cameras at any price they wish
fully cooperate with and assist the ACCC in any legal proceedings the ACCC may commence against other persons alleged to have engaged in or been involved in the conduct.
Mr Isherwood has undertaken to the ACCC to undertake trade practices education and training by completing a trade practices compliance course.
DUET/Alinta/Alcoa consortium
Undertaking in relation to proposed acquisition of the Dampier to Bunbury natural gas pipeline (DBNGP)
s. 50 mergers which would have the effect or likely effect of substantially lessening competition in a substantial market
On 25 October 2004 the ACCC accepted a s. 87B undertaking from Alinta Limited, Alcoa of Australia Limited and DUET. The signatories for DUET were AMPCI Macquarie Infrastructure Management No. 1 Limited in its capacity as the responsible entity of the Diversified Utility and Energy Trust No. 1 and AMPCI Macquarie Infrastructure Management No. 2 Limited in its capacity as the responsible entity of the Diversified Utility and Energy Trust No. 2. Alinta Network Services Pty Ltd (ANS) and DBNGP Holdings Pty Limited were also signatories to the undertaking. DBNGP Holdings is the trustee of the Trust that will own the Dampier to Bunbury natural gas pipeline (DBNGP). Epic Energy (WA) Transmission Pty Limited (EEWAT), the company which will be responsible for commercial operation of the pipeline, will give a s. 87B undertaking in the same terms after the completion of the acquisition.
The undertaking includes:
detailed ring-fencing obligations to limit the disclosure of confidential shipper information by the companies involved in operating and managing the DBNGP, namely EEWAT and ANS
undertakings to promote non-discriminatory access (as between shippers) to information about availability of capacity on the DBNGP
specific non-discrimination commitments in relation to capacity expansion rights for shippers
requirements as to the minimum obligations in relation to confidentiality and non-discrimination which must be included in each Standard Shipper Contract
commitments to enhance the effectiveness of the Gas Access Code ring-fencing obligations
pipeline capacity expansion commitments and a requirement to invest $400 million in the expansion
a commitment to settle the proceedings before the Gas Review Board that predominantly relate to the level of the Initial Capital Base.
On 25 October 2004 the ACCC accepted the proposed undertakings as it considered the terms adequately addressed the competition concerns that had been identified. The complete s. 87B undertaking is available on the ACCC website.
