Asciano Ltd - s.87B undertaking

On 18 April 2007 the ACCC accepted the undertaking of Asciano Limited.

The undertaking is associated with the fifth variation to the undertaking given by Toll Holdings Ltd to the ACCC on 11 March 2006. The fifth variation was accepted on 18 April 2007 and relates to Toll’s planned restructure of its group businesses.

The restructure is proposed by Toll to involve the creation of a new listed company, Asciano, and the transfer of the assets, entities and/or businesses that comprise Toll's infrastructure assets, including Pacific National, to 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, and
• new undertakings from the directors of Toll and Asciano.

Copies of those documents can be viewed on the ACCC’s website.

Under its undertakings Asciano will assume Toll's obligations to make available the Starter's Kit of East West Rail Assets, and also assume the non-discrimination obligations in relation to PN's Intermodal Business and the Patrick container terminals.

Post-restructure Asciano will also be subject to separation provisions that mirror those imposed on Toll, regulating cross shareholdings, directorships, joint ventures, arm's lengths dealings, employment and secondment of personnel.

Asciano's compliance with its undertakings will be audited by an independent auditor and, if Asciano fails to comply with its obligations to maintain its independence from Toll, then it will, notwithstanding the restructure, be required to divest 50 per cent of Pacific National.