On 3 December 2009, the ACCC granted conditional authorisation to Australian Amalgamated Terminals Pty Ltd (AAT), P&O Wharf Management Pty Limited and Plzen Pty Limited to give effect to agreements reached in 2001 and 2002 which establish the AAT joint venture.
The joint venture involves the development and operation of motor vehicle and general cargo handling facilities (terminals) at various Australian ports. The joint venture partners, Patrick and P&O, used to compete in the operation of terminals but are no longer competitors following the joint venture.
AAT lodged its application for authorisation following the settlement of Federal Court proceedings launched by the ACCC in 2007. The proceedings related to alleged contraventions of the TPA arising out of the 2001 and 2002 agreements. The principal allegations were that Patrick and P&O colluded in tendering for the leases of terminals and engaged in price fixing in the automotive stevedoring services market (see Freehills’ September 2007 Competition and Market Regulation Update7).
The proceedings were settled by the parties with an agreed penalty, and in July 2009, the court ordered Asciano and DP World each to pay a $1.9 million penalty for entering into anti-competitive agreements in contravention of the TPA. AAT lodged its application for authorisation to obtain immunity from further contravention of the TPA.
The ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment. As the ACCC was concerned that there are limited public benefits and potentially significant detriments arising from the operation of AAT, the ACCC imposed conditions on the authorisation requiring AAT to:
- provide a mechanism for competing stevedores to seek access to AAT’s terminals
- impose a process for independent review of AAT’s price increases to terminal end-users (importers and exporters), and
- provide terminal end-users with a dispute resolution process for non-price disputes.