The ACCC has agreed to variations proposed by Australian Amalgamated Terminals Pty Ltd (AAT) and Qube Holdings Limited (Qube, ASX: QUB) to their 2016 undertaking to the ACCC.
The ACCC agreed, for a limited three-year period, to remove the open access conditions for AAT’s Appleton Dock general cargo facility at the Port of Melbourne, in relation to arrangements between AAT and shipping lines when AAT contracts directly with those shipping lines.
AAT must not link its services to the shipping line using Qube entities, for example by providing the shipping line with special deals for Appleton Dock if the shipping line uses Qube’s stevedoring services.
“AAT has claimed that since Appleton Dock started operating as primarily a general cargo facility in January, it competes with the Port of Geelong for general cargo, and our inquiries found some customers consider the two may be alternatives,” ACCC Acting Chair Delia Rickard said.
“Overall however, the market gave us mixed feedback about whether the terminals are competitive alternatives. We consented to the variation taking into account it is for a limited three year period. At the end of the three year period, the variations will no longer apply and the original undertaking will apply to AAT’s operations at Appleton Dock.”
The price dispute resolution process and regular auditing are also removed for Appleton Dock for the three-year period, which started on 25 June 2018.
“Terminal users at Appleton Dock will still be able to use the non-price dispute resolution process in the undertaking. And as always, terminal users can contact the ACCC directly if they are concerned about AAT’s compliance with the undertaking,” Ms Rickard said.
The variations have also added a condition enabling the ACCC to reinstate the auditor at Appleton Dock if the ACCC considers AAT has failed to adequately resolve complaints.
The variations also include simplifying the process for AAT to vary berthing allocation rules, and changes to the price dispute resolution process to provide more certainty that proposed price increases can be implemented by the beginning of the next financial year.
The ACCC may accept written undertakings from parties pursuant to section 87B of the Competition and Consumer Act (2010).
AAT operates terminals with facilities for importing and exporting motor vehicles and general cargo. Currently, AAT operates terminals at Port Kembla (New South Wales), Fisherman Islands (Queensland) and Appleton Dock (Victoria).
Qube’s business includes stevedoring for automotive and general cargo.
In 2016, the ACCC accepted an undertaking from Qube and AAT to address competition concerns in relation to Qube’s acquisition of the remaining 50 per cent share of AAT from a Brookfield-led Consortium, which resulted in Qube owning 100 per cent of AAT.
At the time of reviewing the acquisition, the ACCC was concerned that Qube, as the sole owner of AAT, could discriminate against other existing and potential competitors operating at AAT’s terminals, and favour its own interests in stevedoring and vehicle pre-delivery inspection services at AAT terminals. The ACCC accepted the undertaking from Qube and AAT to address this concern.
Under section 87B(2) of the Act, parties to section 87B undertakings may vary their undertaking at any time but only with the consent of the ACCC.