92 results, showing 21 to 40
The ACCC accepted a section 87B undertaking from Aurora Energy and the Tasmanian Government in relation to the acquisition of the Tamar Valley Power Station Project and other related assets by Aurora Energy.
The undertaking required the parties to hold the assets separate for an interim period, so that the ACCC was able to conduct a full competition assessment of the proposal.
The Ingles Group is a property developer located on the Gold Coast with a number of developments, including a housing estate known as the Tee Trees Residential Golf Community (the Estate). A major feature of the Estate, in promotional and marketing material, was that it was to include a golf course. Purchasers experienced significant delay in the commencement of the construction of the golf course, and complained that Ingles Group had misled them that they had obtained Gold Coast City Council (Council) approval for the golf course. (The golf course is not yet complete, but is presently being constructed by the Ingles Group.)
By a letter dated 28 May 2003, the Ingles Group and Mr Ingles made representations to residents and potential purchasers as to the status of the Council approval and otherwise to the progress of the construction of the golf course. The Ingles Group has admitted that these representations were misleading or deceptive, or likely to mislead. Mr Ingles, the sole director of the Ingles Group, has also admitted to being knowingly concerned in the conduct.
The Ingles Group has undertaken to the ACCC that it will:
place corrective notices in the Gold Coast Bulletin newspaper;
place corrective notices on its websites;
on a quarterly basis, place a notice on its websites advising of the progress of the construction of the golf course;
on a quarterly basis, mail out a notice to residents of the estate advising of the progress of the construction of the golf course; and
establish, implement and maintain a Trade Practices Compliance Program for 5 years, to minimise the risk of future breaches of Part V of the TPA.
Raktos Distribution Services Pty Limited (trading as ‘Smokers Supplies’) is an importer and distributor of tobacco products and accessories.
Raktos and its directors have admitted that from approximately March 2007 to June 2008, Raktos supplied retailers, in contravention of sections 65D and 75AZT of the Trade Practices Act 1974, with Captain Black Little Cigars Filters and Captain Black Gold branded tobacco products which did not comply with the tobacco labelling requirements prescribed by the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004.
Raktos and its directors have provided court enforceable undertakings to the ACCC that:
Raktos and its directors will refrain from supplying tobacco products which do not comply with the tobacco regulations which are in force at any particular time;
Raktos will remove non-complying tobacco products from sale and offer a full refund of the purchase price or replacement tobacco products to retailers who bought non-complying tobacco products from Raktos or its directors; and
Raktos will implement and maintain a trade practices law compliance program.
Flinders Ports offered the section 87B undertaking (undertaking), to avoid delay and address the ACCC’s concerns about the impact that the proposed joint venture may have on the supply of container stevedoring services at Port Adelaide, South Australia.
Post-transaction, Flinders Ports would have dual roles as container stevedore and port manager, and would be responsible for allocating the necessary inputs for container stevedoring at Port Adelaide to parties who are potentially also its competitors.
Broadly, the undertaking requires Flinders Ports to:
notify the ACCC of any allocations of certain relevant land at Port Adelaide, and licences for container stevedoring at Port Adelaide;
delay settlement of any allocations of land or container stevedoring licences notified to the ACCC pursuant to the undertaking, until the ACCC has concluded a review and confirmed the outcome to Flinders Ports; and
provide written reports to the ACCC concerning approaches made to Flinders Ports by interested third parties who have sought allocations of land or container stevedoring licences from Flinders Ports.
The undertaking adequately addresses competition concerns that the proposed joint venture would increase barriers to entry in the market for container stevedoring services at Port Adelaide.
It ensures that the process used by Flinders Ports to allocate the necessary inputs for container stevedoring is transparent, and subject to review by the ACCC in accordance with the Merger Review Process Guidelines 2006.
The notification process established by the undertaking also ensures that prospective new entrants are not deterred from seeking entry by the fact of the joint venture between Flinders Ports and DP World (SA) Pty Ltd, the incumbent stevedore.
A Public Competition Assessment will be issued on the Mergers Public Register in relation to the proposed acquisition.
Vision Group is a provider of ophthalmic services. Icon Laser (Aust) Pty Ltd (Icon), a wholly owned subsidiary of Vision Group, owns and operates a number of ophthalmic consulting and surgical businesses, including the Central Queensland Eye Centre (CQEC) practice.
Icon recruited Dr Blanc to work at the Hervey Bay and Maryborough clinics of CQEC and entered into an Independent Contractor Agreement (Agreement) with him in July 2006. The Agreement concerned the terms and conditions on which Dr Blanc was engaged by Icon and included a provision confining the area in which Dr Blanc could undertake private ophthalmic practice during, and for a defined period following the termination of, the Agreement.
The Agreement was terminated following a break down in discussions between the parties. Dr Blanc commenced his own practice in Maryborough in the same region as a CQEC clinic in potential breach of the restraint clause in the Agreement. Vision Group instituted legal proceedings against Dr Blanc in relation to the alleged breach. The parties settled the dispute by way of a Deed of Release dated 17 July 2007 (Deed).
Clause 3.1(4) of the Deed provided that Dr Blanc must not perform operations at the Hervey Bay Surgical Centre located at Boat Harbour Drive, Pialba, Queensland for a period of 12 months from 18 May 2007 unless St Stephen's Hospital Hervey Bay was in liquidation and/or ceased to operate in which case Dr Blanc may perform operations at the Hervey Bay Surgical Centre.
The ACCC considers that clause 3.1(4) of the Deed constitutes an exclusionary provision for the purpose of restricting or limiting the supply by Dr Blanc at the Hervey Bay Surgical Centre of ophthalmic services to patients in the relevant geographic region of Hervey Bay and Maryborough (and thereby constraining the Hervey Bay Surgical Centre from competing in the market).
Cotton On Clothing Pty Ltd operates 164 retail stores throughout Australia.
Between April and May this year, Cotton On Clothing retail outlets made available for sale to consumers a Home Boots footwear product.
Video Ezy proposed a variation to the section 87B undertaking (undertaking) accepted by the ACCC on 18 September 2007 in relation to Video Ezy’s acquisition of the Blockbuster business in Australia.
Broadly, the variation:
allows Video Ezy to introduce and offer a new point-of-sale system (POS) to the Blockbuster network of franchisees
provides that the Video Ezy and Blockbuster POS systems will operate on separately operated and located servers
provides for the separation of the marketing teams for Video Ezy and Blockbuster networks with regard to the separate POS systems
prohibits confidential POS system information from being shared between the networks
provides that franchisees are not obliged to use centralised pricing and can override such pricing
provides that compliance training will include the obligations relating to confidential information and confidential POS system information, in particular for information technology personnel.
On 12 August 2008, the ACCC accepted the undertaking of William Howard Cameron, a director of Toll Holdings Ltd ('Toll') and/or its related bodies corporate.
Under the undertaking, William Howard Cameron agrees to sell down any interest he has in Asciano Limited and thereafter maintain his independence from Asciano.
In addition, William Howard Cameron must immediately resign from all positions within Toll, and take no further part in the company if he ceases to meet the requisite standards of independence.
The undertaking is associated with the fifth variation, accepted by the ACCC on 18 April 2007, to the undertaking given by Toll to the ACCC on 11 March 2006.
The fifth variation relates to Toll's restructure of its group businesses by way of scheme of arrangement to create a new listed entity and trust, Asciano.
The ACCC's decision to consent to the fifth variation is given effect through the following documents:
a variation to Toll's undertakings;
a new undertaking from Asciano Ltd; and
new undertakings from the directors of Toll and Asciano.
A copy of those documents can be viewed on the ACCC's website.
On 12 August 2008, the ACCC accepted the undertaking of Mr Peter Winslow, a director of Toll Holdings Ltd and/or its related bodies corporate.
Under the undertaking Mr Peter Winslow agrees to sell down any interest he has in Asciano Limited and thereafter maintain his independence from Asciano.
In addition, Mr Peter Winslow must immediately resign from all positions within Toll, and take no further part in the company, if he ceases to meet the requisite standards of independence.
The undertaking is associated with the fifth variation, accepted by the ACCC on 18 April 2007, to the undertaking given by Toll to the ACCC on 11 March 2006.
The fifth variation relates to Toll’s planned restructure of its group businesses by way of scheme of arrangement to create a new listed entity and trust, Asciano.
The ACCC's decision to consent to the fifth variation is given effect through the following documents:
a variation to Toll's undertakings;
a new undertaking from Asciano Limited;
new undertakings from the directors of Toll and Asciano.
A copy of those documents can be viewed on the ACCC’s website.
On 12 August 2008, the ACCC accepted the undertaking of Mr Hugh Cushing, a director of Toll Holdings Ltd and/or its related bodies corporate.
Under the undertaking Mr Hugh Cushing agrees to sell down any interest he has in Asciano Limited and thereafter maintain his independence from Asciano.
In addition, Mr Hugh Cushing must immediately resign from all positions within Toll, and take no further part in the company, if he ceases to meet the requisite standards of independence.
The undertaking is associated with the fifth variation, accepted by the ACCC on 18 April 2007, to the undertaking given by Toll to the ACCC on 11 March 2006.
The fifth variation relates to Toll’s planned restructure of its group businesses by way of scheme of arrangement to create a new listed entity and trust, Asciano.
The ACCC's decision to consent to the fifth variation is given effect through the following documents:
a variation to Toll's undertakings;
a new undertaking from Asciano Limited;
new undertakings from the directors of Toll and Asciano.
A copy of those documents can be viewed on the ACCC’s website.
Ezibuy Ltd, a retailer of clothing and homewares in Australia and New Zealand, has admitted to incorrectly labelling and advertising an acrylic Throw and a cotton/polyester Shawl in respect of the fibre content.
Ezibuy represented the Throws as mohair throws when the Throws were not composed entirely of mohair. Ezibuy also represented the Shawls as pashmina shawls when the Shawls had no pashmina content.
Ezibuy has provided a court enforceable undertaking to the ACCC that:
all future advertising for all of its product range will accurately describe the composition, quality or standard of the product range;
it has placed corrective advertising on its websites and in its catalogues;
it has offered refunds to customers;
and that it has implemented a trade practices corporate compliance program for Ezibuy employees.
Living Momentum Pty Ltd has provided court enforceable undertakings to the ACCC after bunk beds that it had imported and supplied to consumers did not comply with the requirements of the mandatory product safety standard.
Consumer Protection Notice No.1 of 2003 – Consumer Product Safety Standard – Bunk Beds made pursuant to section 65E of the TPA requires bunk beds supplied in Australia to comply with certain requirements specified in the Australian and New Zealand Bunk Bed Standard AS/NZS 4220:1994.
Testing revealed that the bunk beds that Living Momentum had supplied to consumers did not meet a number of requirements of the mandatory Standard.
The ACCC formed the view that Living Momentum had contravened section 65C of the Trade Practices Act 1974 which prohibits a corporation from supplying goods that are in breach of product safety standards and consumer protection notices.
The ACCC has accepted a section 87B undertaking from Living Momentum to address the matter.
Living Momentum has undertaken to the ACCC that it will:
for a period of 3 years, ensure that goods supplied by Living Momentum that are subject to a prescribed safety and/or information standard under the TPA comply with the relevant standard;
at its own expense, cause to publish an information notice on its website;
display an information notice at the point of sale in its store for a period of no less than 3 months;
contact its customers who purchased the products to offer them the option to repair and modify the bunk bed, or be refunded the cost of the bunk bed and report on this obligation to the ACCC; and
establish and implement and maintain a Trade Practices Compliance Program for 3 years, to minimise the risk of future breaches of section 65C of the TPA and to ensure an awareness of the responsibilities and obligations in relation to the requirements of section 65C of the TPA.
Busby Distribution Pty Ltd, the business that operates Aldo Australia stores in Victoria and New South Wales, has offered a section 87B court enforceable undertaking to the ACCC following its supply to consumers of sunglasses that failed to comply with the mandatory consumer product safety standard prescribed under the Trade Practices Act 1974 (the Act), namely AS/NZS 1067:2003 Sunglasses and fashion spectacles (the Standard).
Specifically, Busby supplied sunglasses that were not labelled with the lens category number and corresponding description.
National Foods proposed the section 87B undertaking (undertaking), in anticipation of ACCC concerns about the impact that the proposed acquisition may have on:
the acquisition of raw milk in central NSW and SA
the NSW and SA markets for the wholesale of fresh white milk
the NSW and SA markets for the wholesale of flavoured milk.
Broadly, the undertaking:
divests two milk processing facilities (Lidcombe NSW and Clarence Gardens SA)
grants licences for a range of National Foods’ and Dairy Farmers' white and flavoured milk brands
transfers/assigns depots and distribution agreements
agrees to supply raw milk for the first 12 months.
The key difference between the approaches in the two states is that in NSW, the licences for fresh white milk will be transferred to the approved purchaser for a period of two years while in SA the licensing arrangement will be perpetual.
The undertaking adequately addresses competition concerns with the acquisition of raw milk and the supply of fresh white and flavoured milk in NSW and SA.
Fairfax Digital Australia and New Zealand Pty Ltd (Fairfax Digital) is the registrant of websites including www.domain.com.au.
During February and March 2008 banner advertisements promoting the Domain mobile phone service were published across Fairfax Digital websites.
The primary purpose of the Domain mobile phone service was to offer users the ability to view and search property listings featured on Domain.com.au from their mobile phone.
The banner advisements and related webpage for the Domian.com.au mobile service indicated that the service was free, when in fact users may have incurred charges from their telecommunications provider.
Furthermore, the advertisements omitted to indicate that, in relation to the optional Domain mobile alert service, users would be charged 55 cents for each SMS alert received.
Fairfax Digital has acknowledged the ACCC’s concerns that the conduct may have mislead consumers in contravention of sections 52 and 53(e) o the TPA.
The ACCC has accepted undertakings from Fairfax Digital under section 87B of the TPA.
Fairfax Digital has undertaken that it will:
not publish any advertisement or promotional information on websites representing that Domain mobile phone services are free, in circumstances where consumers may incur charges or fees when using those services.
cause a corrective notice to be published on the Domain homepage; and
update its Trade Practices compliance program to ensure that it continues to comply with the TPA.
On 22 July 2008, the ACCC accepted the undertaking of Kevin Jaffe, a director of Toll Holdings Ltd ('Toll') and/or its related bodies corporate.
Lincraft Australia Pty Ltd (Lincraft) offered for sale children's bath robes which did not comply with the Children's Nightwear Standard (the standard).
The bath robes were supplied to Lincraft by Cotton Dreams Pty Ltd (Cotton Dreams).
Tests carried out by the Australian Wool Testing Authority indicated that the bath robes did not meet the surface burning requirements or qualify for any one of the four fire hazard categories applicable under the Standard.
Consequently the bath robes should not have been sold.
Further, the bath robes also failed to meet the labelling requirements in respect of numerical sizing and labelling requirements for the placement of the fire hazard warning label.
Lincraft acknowledged that by supplying the bath robes which failed the standard it had engaged in conduct likely to be in contravention of the Act.
When contacted by the ACCC Lincraft and Cotton Dreams undertook corrective action by withdrawing the bath robes from sale, conducting a voluntary recall of the bath robes and placing recall notices in daily newspapers in each state and territory where the bath robes were sold.
Additionally, Lincraft has provided court enforceable undertakings to the ACCC that it will refrain from supplying children's nightwear products that do not comply with the Standard and provide a report to the ACCC detailing the number of bath robes it destroyed and the number of bath robes returned by it to Cotton Dreams for destruction.
Lincraft will also commission an external review of its existing Trade Practices Compliance Program and report to the ACCC the findings of the report and implement a trade practices compliance program which reflects any reasonable and appropriate recommendation made in the report.
Cotton Dreams Pty Ltd (Cottons Dreams) imported, distributed and supplied children's bath robes to Lincraft Australia Pty Ltd (Lincraft) and through its own clearance store in Sydney which did not comply with the Children's Nightwear Standard (the standard).
Tests carried out by the Australian Wool Testing Authority indicated that the bath robes did not meet the surface burning requirements or qualify for any one of the four fire hazard categories applicable under the Standard.
Consequently the bath robes should not have been sold.
Further, the bath robes also failed to meet the labelling requirements in respect of numerical sizing and labelling requirement for the placement of the fire hazard warning label.
Cotton Dreams acknowledged that by supplying the bath robes which failed the standard it had engaged in conduct likely to be in contravention of the Act.
When contacted by the ACCC Cotton Dreams and Lincraft undertook corrective action by withdrawing the bath robes from sale, conducting a voluntary recall of the bath robes and placing recall notices in daily newspapers in each state and territory where the bath robes were sold.
Additionally, Cotton Dreams has provided court enforceable undertakings to the ACCC that
it will refrain from supplying children's nightwear products that do not comply with the Standard
it will destroy all of the bath robes and provide the ACCC with a Certificate of Destruction and;
it will establish and implement a Trade Practices Compliance Program.
Goodyear Tyres Pty Ltd (Goodyear Tyres) is an importer, manufacturer and distributor of tyres.
During 2007 and 2008, Goodyear Tyres made a number of representations regarding the environmental benefits of its new Eagle LS2000 range of tyres, to the effect that:
the Eagle LS2000 is a revolutionary environmentally-friendly tyre;
the Eagle LS2000 is designed for minimal environmental impact;
the production process for the Eagle LS2000 results in reduced carbon dioxide emissions;
the Eagle LS2000 aims to have a major environmental impact by reducing carbon dioxide emissions during its production process; and
Goodyear’s BioTRED technology, as used in the Eagle LS2000, increases the life of the Eagle LS2000, improves fuel economy and reduces the impact on the environment.
The ACCC was concerned that by making the representations, Goodyear Tyres was misleading consumers about the environmental benefits of the Eagle LS2000 tyre in breach of sections 52 and 53(c) of the Trade Practices Act 1974.
Goodyear Tyres has acknowledged the environmental benefits claimed could not be substantiated.
Goodyear Tyres has co-operated with the ACCC and has withdrawn all material containing the representations. The ACCC has accepted a court enforceable undertaking from Goodyear Tyres that it will:
refrain from making the representations in relation to the Eagle LS2000 tyre;
at its own expense, cause a corrective notice to be published in a major metropolitan newspaper in each capital city, on its Australian website, and in each Goodyear Autocare Centre;
provide a partial refund to customers who purchased the Eagle LS2000 tyre between 1 February 2007 and 31 March 2008 and who relied on the unsubstantiated representations; and
implement a Trade Practice Compliance Program.
Gotalk Ltd, owner of Gotalk Communications Pty Ltd, an Australian telecommunications carrier, admits that telemarketers operating on its behalf were likely to have engaged in conduct between 2004 and November 2007 which, in the view of the ACCC, misled and harassed consumers.
Gotalk has undertaken to compensate any consumers who transferred their services to it as a result of the conduct and suffered loss as a result of that transfer.
It will write to all of its current customers who were obtained through telemarketing, and advertise in a number of newspapers to reach former customers. It will also display a copy of the advertisement on its website, www.gotalk.com.au.
As part of Gotalk’s normal terms and conditions, customers obtained through telemarketing are able to terminate their contracts without penalty.
Examples of the misrepresentations that were made to consumers include:
they were being contacted on behalf of their current telecommunications carrier;
Gotalk Communications was an owner, subsidiary, agent or reseller of their current carrier;
they were required to change their carrier to Gotalk Communications;
incorrect statements as to the price and/or effect of the terms and conditions of Gotalk Communications' services; and
changing to Gotalk Communications would not compromise any benefit for bundling multiple services with one carrier.
The telemarketers also contacted some consumers with great frequency, despite the consumers making it known that they did not wish to acquire the services nor receive further calls from Gotalk Communications, and continued to contact some consumers until they agreed to change their carrier to Gotalk Communications.
Gotalk admits that, if proven, these incidents would constitute contraventions of the Trade Practices Act 1974 for which it would be liable.
Gotalk has terminated its contracts with the telemarketing companies involved in the conduct, and has undertaken to monitor carefully the behaviour of any telemarketers it uses in future.
It will implement a compliance program which will include training in TPA matters for all staff involved in customer contact, protection for whistleblowers, and a complaints handling program that meets the Australian Standard.
It will keep complete recordings of all calls that result in a transfer to Gotalk, and record an equal number of conversations per month which do not result in a transfer. Gotalk staff will audit a significant number of randomly selected calls and report their findings to Gotalk’s General Counsel.
All relevant documents will be made available to the ACCC on request.
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