On 17 September 2020, Port of Newcastle Operations Pty Limited applied to the Australian Competition Tribunal (Tribunal) under section 101 of the Competition and Consumer Act 2010 for review of the ACCC’s determination (of 27 August 2020). This matter is now before the Tribunal and the ACCC determination has not come into effect.
The interim authorisation granted by the ACCC on 2 April 2020 remains in place.
Application for review by the Tribunal
On 17 September 2020, Port of Newcastle Operations Pty Limited (the target of the proposed collective bargaining conduct) lodged an application for review of the ACCC's determination with the Tribunal.
The Tribunal has published the application, which can be found on the Tribunal's website.
As an application for review has been made to the Tribunal, the ACCC’s determination has not come into effect. A review by the Tribunal is a re‑hearing of the matter.
Background on NSW Minerals Council’s application for authorisation of collective bargaining and ACCC determination
The NSW Minerals Council and ten mining companies sought authorisation to collectively bargain with Port of Newcastle Operations Pty Ltd (PNO) all terms and conditions of access relating to the export of coal from Port of Newcastle. The mining companies are Glencore Coal, Yancoal, Peabody Energy, Bloomfield Collieries, Centennial Coal, Malabar Coal, Whitehaven Coal, Hunter Valley Energy Coal, Idemitsu Australia, and MACH Energy Australia.
Specifically, the Applicants sought authorisation to:
· collectively discuss and negotiate the terms and conditions of access, including price to the Port of Newcastle (the Port) for the export of coal (and any other minerals) through the Port
· discuss amongst themselves matters relating to the above discussion and negotiations, and
· enter into and give effect to contracts, arrangements or understandings with PNO containing common terms which relate to access to the Port and the export of minerals through the Port (the Proposed Collective Bargaining Conduct).
Participation in the Proposed Collective Bargaining Conduct is voluntary, and does not include proposed collective boycott activity. The Applicants requested authorisation for 10 years.
The Applicants requested urgent interim authorisation to commence collective negotiations with PNO in relation to the terms and conditions of a pro-forma ten year pricing Deed recently offered to Port users by PNO.
On 2 April 2020, the ACCC granted interim authorisation in respect of the collective bargaining application lodged by the Applicants. Interim authorisation is granted to enable the Applicants to commence collective discussions amongst themselves and negotiations with PNO in relation to the terms and conditions of access, including price, to the Port.
On 19 June 2020, the ACCC issued a draft determination proposing to grant authorisation for the Proposed Collective Bargaining Conduct for ten years. For further information, please refer to the ACCC’s draft determination from the Decisions link below.
On 27 August 2020, the ACCC issued a determination granting authorisation for the Proposed Collective Bargaining Conduct until 30 September 2030. The ACCC’s final determination can be found under the Decisions heading below.
|ACCC to Interested Parties re Draft Determination ( PDF 464.47 KB )||19 Jun 2020|
|ACCC to Interested Parties re Consultation Process ( PDF 423.86 KB )||11 Mar 2020|
|ACCC to Applicants requesting further information ( PDF 239.61 KB )||1 May 2020|
|ACCC to Port of Newcastle Operations re Interim Authorisation Decision ( PDF 256.38 KB )||2 Apr 2020|
|ACCC to Interested Parties re Interim Authorisation Decision ( PDF 252.76 KB )||2 Apr 2020|
|ACCC to Applicant re Interim Authorisation Decision ( PDF 252.7 KB )||2 Apr 2020|
|Show all documents (1 more)|
Submissions - before draft decision
|Applicants – response to ACCC information request ( PDF 306.36 KB )||15 May 2020|
|Applicants - Response to interested parties 30 April 2020 ( PDF 238.78 KB )||30 Apr 2020|
|Port Authority of NSW ( PDF 387.38 KB )||15 Apr 2020|
|Port of Newcastle Operations ( PDF 330.09 KB )||7 Apr 2020|
|Hunter Valley Coal Chain Coordinator Limited ( PDF 87.62 KB )||3 Apr 2020|
|Yancoal ( PDF 183.49 KB )||3 Apr 2020|
|Port Waratah Coal Services ( PDF 136.71 KB )||3 Apr 2020|
|Applicant ( PDF 89.61 KB )||25 Mar 2020|
|Whitehaven Coal ( PDF 220.04 KB )||18 Mar 2020|
|Port of Newcastle ( PDF 116.18 KB )||18 Mar 2020|
|Yancoal ( PDF 272.45 KB )||18 Mar 2020|
|Port Waratah Coal Services ( PDF 105.62 KB )||18 Mar 2020|
|Show all documents (9 more)|