Members of the Minerals Council of Australia (MCA) and other mining associations will be able to work together to manage critical services and supplies during the COVID 19 pandemic, after the ACCC granted interim authorisation for the arrangements today.

The COVID-19 pandemic has led to shortages and supply chain disruptions for some critical services and supplies used by the mining sector.

The interim authorisation will help ensure Australia’s mining industry continues to operate safely and efficiently, by allowing members that have been notified to the ACCC to co-ordinate on the sourcing, purchase and distribution of crucial supplies and services such as health and safety equipment, logistics, equipment maintenance and consumables like fuel and explosives.

“The COVID-19 pandemic has had a dramatic impact on global manufacturing and supply chains, which has created challenges for those sectors, such as mining, that are still operating and still in need of crucial equipment and services,” ACCC Chair Rod Sims said.

“To help address these challenges, we have authorised mining companies to co-ordinate on a limited range of activities to help ensure they can continue to operate safely and efficiently.”

The authorisation only applies to activities relating to these critical services and supplies. It will, for example, allow companies to share inventories and manage demand for these critical services and supplies, coordinate deliveries, and share details of potential suppliers of personal protective equipment (PPE), such as N95 masks needed to work in underground mines.

“Importantly, the approval does not allow mining companies to coordinate on the terms, conditions or prices in supply contracts,” Mr Sims said.

“We are going to closely monitor the effect of these arrangements and when it is appropriate for this authorisation to be revoked.”

The authorisation applies to members of the MCA and seven other mining associations. The ACCC must be notified in advance of any arrangements made under the authorisation.

The ACCC will now seek feedback on interim authorisation, as well as the application for final authorisation, which is sought for a period of 12 months from the date of authorisation. More information, including the ACCC’s statement of reasons, a list of associations included, and the supplies and services covered by the authorisation, is available at Minerals Council of Australia.

Background

The Minerals Council of Australia’s membership includes many of Australia’s biggest mining companies. It has 51 full member companies and 29 associate member companies including mining service providers, state chambers, energy and transport companies and consultancy firms.

Notes to editors

ACCC authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.

Section 91 of the Act allows the ACCC to grant interim authorisation when it considers it is appropriate. This allows the parties to engage in the proposed conduct while the ACCC is considering the merits of the substantive application.

The ACCC may review a decision on interim authorisation at any time, including in response to feedback raised following interim authorisation.

Broadly, the ACCC may grant a final authorisation when it is satisfied that the likely public benefit from the conduct outweighs any likely public detriment.

The ACCC has granted unconditional merger authorisation to Gumtree’s proposed acquisition of Cox Australia Media Solutions (Cox Media), allowing Gumtree Cars to be combined with Cox Media’s Carsguide and Autotrader sites.

“We authorised this merger because we concluded it was not likely to lead to a substantial lessening of competition, including in the supply of online automotive classifieds in Australia. Therefore it was not necessary to consider the public benefit limb of the authorisation test,” ACCC Chair Rod Sims said.

Carsales is the leading provider of online automotive classified advertising in Australia and is a significant competitive constraint on Gumtree and Cox Media. Facebook Marketplace is also a growing competitor to Gumtree and Cox Media in the supply of online automotive classifieds services.

“Our investigation showed that Carsales and Facebook Marketplace are likely to continue to provide significant competition in online automotive classifieds after Gumtree acquires Cox Media,” Mr Sims said.

“We also found that Gumtree and Cox Media focus on different segments, with Gumtree focussing on private seller listings and Cox Media focussing on dealer listings.”

The ACCC also investigated the impact of the acquisition on the supply of online display advertising on digital automotive content providers.

The ACCC was satisfied that the acquisition is unlikely to result in a reduction of competition for supplying online display advertising to advertisers wishing to target potential car buyers.

“Many advertisers use third parties to place targeted advertisements to individual consumers based on browsing history data on a wide range of websites. Further, we found there are a range of other digital automotive content providers where direct advertisers could place automotive-related advertising, including Drive, Carsales, GoAuto and digital versions of automotive print publications,” Mr Sims said.

The ACCC’s determination is available at Gumtree AU Pty Ltd proposed acquisition of Cox Australia Media Solutions Pty Ltd.

Background

Gumtree’s application is the second merger authorisation application following reforms in 2017 to the merger authorisation process, which reinstated the ACCC’s ability to consider applications for merger authorisation. Previously authorisation applications were made directly to the Australian Competition Tribunal.

Merger authorisation provides an alternative avenue for merger clearance to the informal merger review process, which is the most commonly used avenue used by merger parties. The authorisation process is public. If merger authorisation is granted, merger parties are exempt from the merger laws.

The ACCC may grant authorisation for a proposed merger if it is satisfied the merger is not likely to substantially lessen competition, or where the likely public benefits outweigh the likely public detriments.

Gumtree sought merger authorisation for its proposed acquisition of Cox Media. Gumtree (through Gumtree Cars) and Cox Media (through Carsguide/Autotrader) both offer online automotive classified advertising to private and dealer sellers in Australia. Gumtree and Cox both sell third parties display advertising space on their websites and mobile applications.

Gumtree is a subsidiary of eBay Classifieds Holding BV, whose ultimate parent company is eBay Inc. eBay operates a multi-category general classifieds website in Australia.

Cox Media is a subsidiary of Cox Automotive, which is 70 per cent owned by Cox Automotive International Sarl and 30 per cent owned by DealerMotive Ltd, a consortium of Australian dealer groups. Carsguide and Autotrader provide automotive editorial content and automotive classifieds.

Nearly 200,000 vehicles fitted with potentially deadly airbags are still on the roads, and more than 8,000 of these are considered so dangerous they should not be driven at all, according to the latest ACCC figures on the compulsory recall of Takata airbags.

In addition, a significant number of vehicles fitted with a different type of faulty Takata airbag are yet to be remedied. These vehicles, which are fitted with Takata NADI airbags, are considered so dangerous that manufacturers are offering to buy back the vehicles or to provide a loan vehicle until replacement parts are available. We are aware that there have been two deaths and two injuries in Australia resulting from misdeployments of Takata NADI airbags. 

Motorists are being urged to check now if their vehicles are fitted with these recalled Takata airbags, as car dealerships are still operating and providing replacement airbags free of charge. 

“Even during this pandemic, replacing faulty airbags is an essential and potentially life-saving task, especially as vehicles may be being used by essential workers and care-givers,” ACCC Deputy Chair Delia Rickard said.

“It will also be more important than ever that as more people start to use their cars again, they check that their airbags are safe. Affected Takata airbags can misdeploy and send sharp metal fragments into the vehicle at high speed, and cause serious injury or death to its occupants.”

“Drivers should check online or with their dealer or manufacturer whether their vehicles are subject to this compulsory recall or the voluntary recall of Takata NADI airbags, and never ignore a notice of recall from your car’s manufacturer,” Ms Rickard said.

Globally there have been 29 deaths and over 320 serious injuries reported, including one death and one serious injury in Australia relating to airbags affected by the compulsory recall.

Over four million airbags in more than three million vehicles in Australia were originally affected by the Takata compulsory recall due to these potentially deadly airbags.

More than 88 per cent of airbags have now been rectified, and about six per cent have been reported by suppliers as written-off, stolen, unregistered, exported or modified and unable to be replaced.

Figures from the ACCC’s latest quarterly update on the compulsory recall show that about five per cent (over 228,000) of faulty airbags remain in more than 196,000 vehicles.

In particular, motorists are in danger if they have a critical vehicle containing an airbag that poses a heightened risk of causing injury or death. There still more than 8,000 of these vehicles remaining on the roads, and drivers can check the Product Safety Australia website if their vehicle is affected.

“Vehicles with critical airbags should not be driven. Please contact your dealer to arrange for your vehicle to be towed to the place of repair free of charge so you do not have to drive it,” Ms Rickard said.

The ACCC is also conscious of the impact COVID-19 is having on Australian consumers and businesses.

“We understand dealerships are still operating and are offering the services outlined in the compulsory and voluntary recall notices. Both the ACCC and the Department of Infrastructure, Transport, Regional Development and Communications will be closely monitoring any changes to these arrangements,” Ms Rickard said.

Consumers can also search for vehicles affected by the Takata compulsory recall by entering their number plate and state or territory at: IsMyAirbagSafe.com.au or by texting 'Takata' to 0487 AIRBAG (247224).

A list of vehicle manufacturer helplines and contact details is available at: Vehicle manufacturer helplines & contact details.

Takata fast facts

• In total about 3.62 million airbag inflators (88.1%) have now been rectified in about 2.64 million vehicles.
• This excludes 259,025 airbag inflators (6.3%) in 216,138 vehicles reported by suppliers as unrepairable (written off, scrapped, stolen, or modified and unable to have the airbag replaced). 
• There remains 228,764 airbag inflators (5.6%) in 196,299 vehicles outstanding for replacement.
• As at 31 March 2020, there are 1,895 vehicles with critical-alpha airbags and 6,471 vehicles with critical non-alpha airbags outstanding for replacement.
• Vehicles with critical airbags should not be driven, and drivers are entitled to have their vehicles towed to the dealership to have the airbag replaced for free. 

Notes to editors:

• The Takata airbag recall is the world’s largest automotive recall, affecting an estimated 100 million vehicles globally.
• It is the most significant compulsory recall in Australia’s history, with over four million affected Takata airbag inflators and involving more than three million vehicle recalls.
• Takata airbags affected by the compulsory recall use a chemical called phase-stabilised ammonium nitrate (PSAN). The ACCC’s investigation concluded that certain types of Takata PSAN airbags have a design defect. The defect may cause the airbag to deploy with too much explosive force so that sharp metal fragments shoot out and hit vehicle occupants, potentially injuring or killing them.
• In addition to the compulsory recall of vehicles fitted with Takata PSAN airbags, eight vehicle manufacturers have also issued voluntary recalls for some vehicles manufactured between 1996 and 2000, which may have been fitted with a different type of faulty Takata airbag, being a NADI airbag.

The COVID-19 pandemic is dramatically changing the global economic landscape and causing severe disruption to Australian small businesses, ACCC Chair Rod Sims said today.

“Many small businesses are doing it tough, and are being forced to restrict their hours, lay off staff and, for too many, close their doors,” Mr Sims said.

Mr Sims was speaking via Zoom at an event organised by the Australian Chamber of Commerce and Industry (ACCI).

“We know the COVID-19 pandemic is having a significant economic impact across Australia, which is why we are taking measures to help consumers and small to medium sized businesses,” Mr Sims said.

Mr Sims said the ACCC’s immediate response to the pandemic has focused in two broad areas of work:

• authorisation of crisis collaboration between competitors, particularly in relation to hardship polices, and
• the establishment of the ACCC’s COVID-19 Taskforce to tackle immediate harmful consumer and small business problems arising from the crisis.

Mr Sims said the ACCC has already granted interim authorisation allowing retailers to collectively bargain with landlords about rent relief during the pandemic.

“We see a clear public benefit in allowing retailers to work together in negotiations with landlords and help tenants who are experiencing financial hardship,” Mr Sims said.

Mr Sims said a conditional authorisation had also been granted to allow the Australian Energy Council and wholesale and retail energy businesses to provide financial relief to business customers financially impacted by the current crisis.

“Energy is an essential service and it is important energy market participants support businesses through the pandemic,” Mr Sims said.

Mr Sims said there may be further benefits to energy users flowing from the crisis.

“One rare positive to come from this pandemic is that wholesale electricity and gas prices are falling significantly. These falls need to be passed on to businesses that rely on energy,” Mr Sims said.

“As Australia comes out of this crisis we will need our energy prices to fall significantly if we are to have the recovery we need.”

Mr Sims said the ACCC’s COVID-19 Taskforce is rapidly responding to the thousands of phone calls, emails and social media reports from impacted businesses.

“We are already engaging with some large businesses about allegations they are deliberately choosing not to pay their suppliers, or demanding large discounts off goods already delivered, and also delaying payments significantly, and that they should cease the conduct immediately,” Mr Sims said.

“We are looking into concerns that many small grocery or convenience stores are missing out on supplies that now seem readily available to the large supermarkets. We need to maintain strong competition in the retail sector to ensure economic recovery once the pandemic subsides.”

The ACCC has revoked an interim authorisation due to the change in market conditions caused by the COVID-19 pandemic. The ACCC granted the interim authorisation in February to five major car rental companies to jointly negotiate with Cairns Airport including discussions about their lease agreement for space, such as parking bays and counter space at the airport.

The rental companies, Avis, Budget, Hertz, Europcar, and Thrifty, had lodged their application for authorisation in late 2019, but since then, the COVID-19 pandemic has severely impacted the economy’s travel and car rental sectors.

The ACCC decided to revoke the interim authorisation after a request by the car rental companies that the ACCC delay its decision about the substantive application. This request has been granted.

The companies also indicated they would voluntary suspend collective negotiations, permitted under the interim authorisation, during the delay in considering the application.

“As the companies are not proposing to engage in the authorised conduct in the current circumstances, the interim authorisation is clearly no longer needed and it is appropriate we revoke it,” ACCC Commissioner Stephen Ridgeway said.

“Any authorisation, including interim authorisations, should only be in place for as long as they are needed.”

“The car rental companies have indicated they have no current need to be allowed to engage in the conduct, which, without authorisation, could be in breach of competition laws,” Mr Ridgeway said.

“We are closely monitoring when to revoke any interim authorisations, including those granted because of the COVID-19 pandemic, and we expect them to cease when they are no longer appropriate. We also expect authorised parties to keep the ACCC updated of any relevant changes that impact their authorisation.”

The substantive application involved a request for the five car rental companies to collectively negotiate all terms and conditions (both price and non-price) related to the acquisition of airport space and services from Cairns Airport under licence and lease agreements, including a turnover percentage, car parking fees, rental payment and concessions.

The interim authorisation did not extend to entering into collectively negotiated agreements.

“Irrespective of ACCC monitoring in place of the arrangements, allowing the interim authorisation to continue during this period could involve some risk of adverse effects to the interest of Cairns Airport, during the extended review timetable for this matter. The car rental companies can easily and quickly re-apply for interim authorisation at any stage if it becomes necessary,” Mr Ridgeway said.

The ACCC extended the timetable to make a final decision on the application for authorisation by six months. It will seek feedback from interested parties at a later stage.

More information, including the ACCC’s revocation authorisation decision, is available at Car rental operators at Cairns Airport.

Background

On 28 November 2019, the ACCC received an application by six car rental companies seeking authorisation for 10 years in relation to negotiations for space, including counter space, car parking bays and shared facilities, at Cairns Airport. The ACCC conducted public consultations.

On 13 February 2020 the ACCC granted interim authorisation to WTH Pty Ltd trading as Avis Australia, Budget Rent a Car Australia Pty Ltd, Hertz Australia Pty Limited, CLA Trading Pty Ltd trading as Europcar, and Kingmill Pty Ltd trading as Thrifty Car Rental and Dollar Car Rental to prepare for negotiations, and negotiate with Cairns Airport Pty Ltd.

A sixth rental company, Redspot Head Office Pty Ltd (trading as Enterprise, Alamo, National and Redspot), withdrew its request for authorisation on 28 April.

On 26 March 2020, the ACCC issued a draft determination proposing to grant authorisation for five years and sought submissions from interested parties.

Notes to editors

ACCC authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.

Section 91 of the Act allows the ACCC to grant interim authorisation when it considers it is appropriate. This allows the parties to engage in the proposed conduct while the ACCC is considering the merits of the substantive application.

The ACCC may review a decision on interim authorisation at any time, including in response to feedback raised following interim authorisation.

Broadly, the ACCC may grant a final authorisation when it is satisfied that the likely public benefit from the conduct outweighs any likely public detriment.