New South Wales Minerals Council (NSWMC)

Summary

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).  The matter was considered afresh by the Tribunal in a hearing held from 11-14 October 2021.

The Tribunal made its Determination on 18 February 2022, which can be found on its website (Application by Port of Newcastle Operations Pty Limited (No 2) [2022] ACompT 1). It set aside the ACCC’s Determination granting authorisation to NSW Minerals Council’s collective bargaining application for authorisation AA1000473. 

The Tribunal also revoked the interim authorisation granted by the ACCC on 2 April 2020 in relation to application for authorisation AA1000473.

On the evidence before it, the Tribunal was not satisfied that the proposed collective bargaining conduct in respect of the use of the shipping channel and berthing services for the shipment of coal (and the accompanying charges) would be likely to result in any public benefits, or any public detriment, having any material weight.

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.

 

Applicant(s)

  • Glencore Coal Assets Australia Pty Limited
  • Bloomfield Collieries Pty Ltd
  • Malabar Coal Limited
  • Whitehaven Coal Mining Limited
  • Hunter Valley Energy Coal Pty Ltd
  • MACH Energy Australia Pty Ltd
  • New South Wales Minerals Council
  • Peabody Energy Australia Pty Ltd
  • Idemitsu Australia Resources Pty Ltd
  • Yancoal Australia Limited
  • Centennial Coal Company Limited

Authorisation number(s)

  • AA1000473-1

Applications

Document title Date

Decisions

Submissions - after draft decision