ACCC issues guides to collective bargaining notifications, revised authorisations and new merger clearance processes

The Australian Competition and Consumer Commission has issued a number of publications developed to assist businesses to understand changes to the Trade Practices Act 1974 which are now in effect.

The guides have taken into account comments received from the business community and other relevant stakeholders to ensure they are a useful, practical resource. 

Collective bargaining notifications

The Guide to collective bargaining notifications is targeted mainly at small businesses which may be considering collectively negotiating with other small businesses in their dealings with suppliers or customers. It aims to promote awareness of the new notification process for collective bargaining. It also aims to help small businesses understand the process for lodging a collective bargaining notification and the information they will need to provide to the ACCC.

New authorisation processes

The Authorisation – new processes from 2007 guide provides details about changes to the ACCC's authorisation functions. In particular, the publication outlines the new six-month time limit in which the ACCC now has to consider non-merger authorisation applications. The guide describes how the ACCC intends to operate within these new timeframes and what this will mean for applicants and other parties.

The publication also provides details about the ACCC's new discretion to waive non-merger authorisation lodgement fees. The guide outlines how and at what stage of the process parties should apply for a fee waive along with the factors the ACCC will consider in assessing such requests. 

New merger clearance

The Formal merger review process guidelines is a guide to the new formal merger clearance process (including the process for reviewing ACCC's clearance determinations) and the new merger authorisation process. Under the new merger clearance process, parties can apply to the ACCC for clearance in respect of proposed acquisitions of shares or assets.

The publication outlines the approach that the ACCC proposes to take in assessing applications for formal clearance and the requirements on applicants for merger clearances. It also outlines the legislative requirements on parties wishing to apply to the Australian Competition Tribunal for authorisation of proposed mergers and acquisitions.

ACCC Acting Chair, Ms Louise Sylvan, said the publications will not only assist potential applicants but will also be a helpful guide to other groups that might be affected by the new processes.

These groups may include potential targets of collective bargaining notifications, peak industry bodies, legal advisors and other industry professionals.    

"If businesses or advisors are contemplating using one of the new processes, they are encouraged to approach the ACCC at an early stage to discuss how they might go about making an application," Ms Sylvan said.

Background

Following the recommendations of The Review of the Competition Provisions of the Trade Practices Act (the Dawson Review) the Act was amended to provide small businesses with a notification process for obtaining immunity from legal action under the Act for collective bargaining arrangements.

In addition, time limits have been imposed on the ACCC's authorisation function. The ACCC will now be required to complete its assessment of authorisation application within six months. The ACCC now also has the discretion to, under certain circumstances, waive the $7,500 lodgement fee.  

Other changes to the Act include the introduction of a formal merger clearance processes and a process whereby merger authorisation applications are made directly to the Australian Competition Tribunal.

Before the introduction of the new legislation, the consideration of mergers and acquisitions was primarily through an informal review system and, to a lesser extent, application to the ACCC for merger authorisation.

The formal merger clearance system enables an acquirer to apply to the ACCC for clearance of a proposed acquisition which, if granted, provides protection to the acquirer from legal action under section 50 of the Act. If an acquirer is dissatisfied with an ACCC's merger clearance decision, it may apply to the Tribunal for review of the decision.

Under the new merger authorisation process, parties seeking authorisation of proposed acquisitions that might be anti-competitive but which can be conferred protection from application of section 50 on public benefit grounds, must now make such applications directly to the Tribunal.