Wheat Export: Port Terminal Service Access Undertakings

From 1 October 2009, in order to export bulk wheat, vertically integrated wheat exporters are required by the Wheat Export Marketing Act 2008 (WEMA) to pass an 'access test'. Having an access undertaking accepted by the ACCC is one component of the access test.

In 2011, the ACCC accepted undertakings from GrainCorp Operations Ltd (GrainCorp), Australian Bulk Alliance Pty Ltd (ABA), Co-operative Bulk Handling Ltd (CBH) and Viterra Operations Limited (Viterra) under Division 6, Part IIA of the Competition and Consumer Act 2010 (CCA). Previous undertakings were accepted from GrainCorp, CBH and Viterra in 2009 which expired in 2011.

The undertakings include:

obligations on the port terminal operators not to discriminate or hinder access in the provision of port terminal services;
clear and transparent port loading protocols for managing demand for port terminal services;
obligations on BHCs to negotiate in good faith with eligible wheat exporters for access to port terminal services;
the ability of wheat exporters to seek mediation or binding arbitration on terms of access in the event of a dispute; and
an obligation to comply with ‘Continuous Disclosure Rules’ (part of the access test in the WEMA).

ABA’s undertaking is due to expire on 30 September 2013 and the undertakings from CBH, GrainCorp and Viterra due to expire on 30 September 2014. Documents relating to the accepted undertakings can be accessed via the links below.

The Port Terminal Operators

ACCC's role going forward

The ACCC will continue to undertake the following activities in relation to the port terminal services access undertakings:

Monitor compliance with the undertakings - in particular, compliance with the non-discrimination and no hindering access obligations
Assess any new undertakings or variations to the existing four undertakings, including variations to standard access agreements or port terminal protocols (for more information see the Access Undertakings page)
Educate industry about operation of undertakings
Arbitrate access disputes where appropriate
Order independent audits where appropriate

With amendments to the WEMA effective from 10 December 2012, the ACCC is now monitoring ABA, CBH, GrainCorp and Viterra’s compliance with the Continuous Disclosure Rules (CDRs). The CDRs are set out in the WEMA and relate to the publication of ship booking information by the port terminal operators. Complying with the CDRs is part of the WEMA access test, as is the port terminal operators having an obligation to comply with the CDRs included in their undertakings.

In addition, the WEMA amendments provide that from 1 October 2014 port access in the bulk wheat export industry will be regulated by a mandatory code of conduct prescribed under the CCA.

Interested parties who wish to raise a question or concern in relation to the operation of a port terminal operator’s undertaking are requested to contact:

Mr Michael Eady
Director, Regulated Access – Wheat Ports
Fuel, Transport and Prices Oversight Branch
ACCC
GPO Box 520
MELBOURNE VIC 3001
Email:transport@accc.gov.au
Tel: 03 9290 1945