Hutchison Ports Australia Pty Limited

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Hutchison Ports Australia Pty Limited (Hutchison).

Hutchison is a container stevedore, operating international container terminals in Port Botany and Port of Brisbane.

Since at least 12 November 2016, Hutchison’s Terminal Carrier Access Agreement dated 1 January 2016 (2016 TCA) has included two terms that enabled Hutchison:

• to unilaterally vary the provisions of the 2016 TCA, including the fees payable by Hutchison’s small business customers to access and use Hutchison’s terminals in circumstances where there was no requirement to give notice to small business customers of the variation (Variation Clause); and
• to restrict its liability to small business customers in circumstances where small business customers’ liability to Hutchison is not similarly limited (Liability Clause).

Hutchison acknowledges that the Variation Clause and the Liability Clause may contravene the small business unfair contract terms provisions of the Australian Consumer Law (ACL).

Hutchison has provided the ACCC with a section 87B undertaking that it will:

• ensure future agreements, for a minimum period of three years, do not include the Variation Clause or Liability Clause, or terms of similar effect;
• not enforce or rely upon the Variation Clause or Liability Clause, or terms of similar effect for customers that entered into the 2016 TCA;
• publish a corrective notice on Hutchison’s customer portal and website;
• develop, implement and maintain an ACL compliance program.