THE Australian Competition Tribunal on Friday reversed a 2020 ACCC decision to allow the NSW Minerals Council and 10 mining companies to collectively negotiate the price of access to Port of Newcastle to export coal and other minerals.
In March 2020, the NSW Minerals Council applied for authorisation to negotiate the terms and conditions of port access, and industry issues such as proposed capital expenditure at the port and allocation of costs.
The ACCC granted interim authorisation, enabling the council and participating mining companies to commence negotiations with the port operator while the application’s merits were considered.
In August 2020, the ACCC granted authorisation for 10 years at the request of the applicants, allowing mining companies to negotiate the details of a 10-year deed with Port of Newcastle Operations.
“We decided to grant the authorisation because we considered the conduct was likely to result in minimal detriment because participation was voluntary for mining companies and PNO,” ACCC chair Rod Sims said.
“Collective bargaining can facilitate greater efficiencies with the sharing of the time and cost of negotiating contracts and help deliver quicker, more timely resolutions.”
In September 2020, Port of Newcastle Operations sought the Tribunal’s review of the ACCC’s determination.
A review by the tribunal is a re-hearing of the matter, during which the tribunal applies the same authorisation test as the ACCC.
Under the authorisation test, the tribunal must not grant authorisation unless it is satisfied the conduct would result or likely result in a benefit to the public.
The tribunal determines whether that benefit would outweigh any potential detriment to the public which would result from the conduct.
“We will review the reasons for the tribunal’s decision, which have not yet been made public, to understand why it did not grant authorisation for voluntary collective bargaining in this case,” Mr Sims said.
