COVID-19 (Australia): Updated Guide to ACCC Authorisations
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October 2020
COVID-19 (Australia): Updated
Guide to ACCC Authorisations
Ayman Guirguis | David Howarth | Mei Gong | Connor McNamara
This publication is for informational purposes and does not contain or convey legal advice.
The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
© Copyright 2020 by K&L Gates LLP. All rights reserved.
UPDATED GUIDE TO ACCC APPROVALS ON
INDUSTRY COLLABORATION: OCTOBER 2020
Welcome to our updated guide to industry collaborations approved by the Australian
Competition and Consumer Commission (ACCC) in response to the COVID-19
pandemic. You can find additional information in our previous Insight or previous guides
(August and May), or you can contact us directly with your query.
Ayman Guirguis David Howarth Mei Gong Connor McNamara
Partner Special Counsel Lawyer Graduate
ayman.guirguis@klgates.com david.howarth@klgates.com mei.gong@klgates.com connor.mcnamara@klgates.com
+61 2 9513 2308 +61 2 9513 2312 +61 2 9513 2580 +61 2 9513 2433
klgates.com 2 Industry collaborations that involve restrictions on the All authorisations are conditional and generally include
supply of goods or services may breach the Competition reporting and disclosure requirements. However, the
and Consumer Act 2010 (Cth), either automatically (if they ACCC has largely refused to authorise coordination in
amount to cartel conduct) or if they result in a substantial relation to price. Where such coordination is allowed, it
lessening of competition. cannot be used in a way to disadvantage consumers.
Where businesses need to collaborate in response to the The ACCC is monitoring authorisations to ensure that they
COVID-19 pandemic, they can self-assess whether the are operating as intended and will revoke or modify them in
proposed arrangement would be covered by the joint response to a material change in circumstances.
venture exception to cartel conduct, or they can apply to Therefore, even successful applicants need to continue to
the ACCC for authorisation of the proposed collaborative demonstrate the importance of industry collaboration.
conduct. In urgent cases, businesses can apply for an
interim authorisation to commence the collaborative activity We have prepared a comprehensive overview of the
while awaiting a final determination. authorisations granted to date. We hope this information
will assist you to identify whether any operational
As at 1 October 2020, the ACCC has issued over 25 final challenges your business may face could be partly
determinations authorising competitor collaboration across addressed by collaborative activity under an authorisation.
a broad range of sectors, including banking and insurance;
shopping and retail; private and public healthcare; It is important to remember that any activity or discussions
medicines and pharmaceuticals; energy and resources; cannot be authorised retrospectively.
telecommunications; aviation; and food processing.
K&L Gates has represented several businesses that have
The authorisations cover an equally broad range of successfully applied for authorisation and joined interim
collaborative conduct, including competitors cooperating to authorisations and are available to assist at short notice.
mitigate disruptions to supply chains; providing financial
relief and support for affected businesses and individuals;
and sharing information to support implementation of
government initiatives.
klgates.com 3BANKING & INSURANCE
Authorisation Key Participants Conduct Conditions Duration
Suncorp Group Limited Suncorp, Allianz and QBE To discuss and Can only implement relief 31 July 2020 –
on behalf of itself and collectively agree on measures offered prior to 31 December 2020
other providers of minimum relief measures 1 July 2020 and may only
insurance for policyholders, mainly honour such measures
SMEs until 31 December 2020
Financial Services FSC and its members, To cooperate so that • Providing information 7 August 2020 –
Council (FSC) on behalf including AIA, Allianz and healthcare workers are requested by ACCC 31 July 2021
of its Member Life HCF not denied life insurance, • Notifying ACCC of
Insurance Companies will not be charged higher parties opting into or
premiums, and will not out of conduct
have benefits excluded,
purely due to exposure to
COVID-19
Australian Banking ABA and its members, To coordinate financial • Notifying ACCC if 5 September 2020 –
Association (ABA) including ANZ, CBA, relief and assistance to conduct involves third 14 August 2021
(financial relief programs) Westpac, NAB and customer, including party suppliers and/or
Macquarie supporting government agents
initiatives and ensuring • Notifying ACCC of any
high levels of customer arrangement prior to
service and access to its implementation
banking
klgates.com 4SHOPPING & RETAIL
Authorisation Key Participants Conduct Conditions Duration
7-Eleven Stores Pty Stores operated by 7- To approach certain • Notifying ACCC of 20 August 2020 –
Limited Eleven and its franchisees and enter into franchisees 7-Eleven 31 March 2021
franchisees and related arrangements to provide proposes to approach
entities for temporary closure or • Notifying ACCC of any
reduced trading hours arrangements with
franchisees
Australian Retailers ARA and its members To collectively bargain • Keeping records of all 28 August 2020 –
Association (ARA) (mostly tenants in leased and share information in material meetings or 1 September 2021
stores within retail relation to rent relief communications
precincts) measures • Providing ACCC with
any records kept and
other information
requested
klgates.com 5SHOPPING & RETAIL
Authorisation Key Participants Conduct Conditions Duration
National Retail Numerous associations, • To enable their tenant • Keeping records of all 28 August 2020 –
Association Limited on including the Australian members to discuss, material meetings or 1 September 2021
behalf of itself and Hotels Association, share and information communications
participating industry Franchise Council of and collectively • Providing ACCC with
organisations Australia and Pharmacy negotiate with any records kept and
Guild of Australia landlords regarding the other information
support to be provided requested
by tenants to landlords • Landlords notifying
• To enable their ACCC of relief
landlord members to measures
discuss and share
information and agree
on the nature of the
relief to be offered to
certain tenants
Coles Group on behalf of Coles, Woolworths, ALDI To cooperate to ensure • Cooperation must be 25 September 2020 –
itself and participating and Metcash the supply and fair and in conjunction with an 31 March 2021
supermarkets equitable distribution of Authorised Meeting
retail products to • ACCC must approve
consumers future participants
klgates.com 6PUBLIC & PRIVATE HEALTHCARE
Authorisation Key Participants Conduct Conditions Duration
New South Wales private Ministry of Health and To share information and • Providing regular 4 September 2020 –
healthcare COVID-19 public and private coordinate activities updates to ACCC 30 September 2021
arrangements healthcare operators (including procurement) • Notifying ACCC of
to maximise healthcare future participants
capacity and ensure
State-wide coordination of
healthcare services
Victorian private Department of Health and Substantially the same as Substantially the same as 4 September 2020 –
healthcare COVID-19 Human Services and above above. 30 September 2021
arrangements public and private
healthcare operators
Queensland private Queensland Health and Substantially the same as Substantially the same as 4 September 2020 –
healthcare COVID-19 public and private above above 30 September 2021
arrangements healthcare operators
Western Australia private Department for Health Substantially the same as Substantially the same as 4 September 2020 –
healthcare COVID-19 and public and private above above 30 September 2021
arrangements healthcare operators
klgates.com 7PUBLIC & PRIVATE HEALTHCARE
Authorisation Key Participants Conduct Conditions Duration
South Australia private Department for Health Substantially the same as Substantially the same as 4 September 2020 –
healthcare COVID-19 and Wellbeing and public above above 30 September 2021
arrangements and private healthcare
operators
Tasmania private Department of Health and Substantially the same as Substantially the same as 4 September 2020 –
healthcare COVID-19 public and private above above 30 September 2021
arrangements healthcare operators
Australian Capital Health Directorate and Substantially the same as Substantially the same as 4 September 2020 –
Territory private public and private above above 30 September 2021
healthcare COVID-19 healthcare operators
arrangements
Northern Territory private Department of Health and Substantially the same as Substantially the same as 4 September 2020 –
healthcare COVID-19 public and private above above 30 September 2021
arrangements healthcare operators
klgates.com 8PUBLIC & PRIVATE HEALTHCARE
Authorisation Key Participants Conduct Conditions Duration
Australian Medical AMA and participating To collectively negotiate • Notifying ACCC of 17 September 2020 –
Association (NSW) VMOs with private hospital additional private 30 September 2021
Limited (AMA) – Visiting operators regarding the hospitals or healthcare
Medical Officer (VMO) terms and conditions for operators with which
collective bargaining in VMOs engaged to AMA intends to
response to COVID-19 provide medical services negotiate
to public patients in the • Providing regular
NSW private hospital updates to ACCC
system
Private Healthcare PHA and its members To make arrangements • Notifying ACCC of 9 October 2020 –
Australia Limited (PHA) and the Members Health and discuss and share proposed measures 31 March 2021
Fund Alliance and its information with each • Providing fortnightly
members other in relation to private reports to ACCC
health insurance • Providing information
coverage requested by ACCC
• No coordination to
increase health
insurance premiums
• Arrangements must
provide for termination
if conduct no longer
authorised
klgates.com 9MEDICINES & PHARMACEUTICALS
Authorisation Key Participants Conduct Conditions Duration
Medical Technology MTAA and its members To coordinate the supply • Providing fortnightly 2 October 2020 –
Association of Australia of medical equipment and updates to ACCC 30 September 2021
Limited (MTAA) related supplies in • Providing information
response to the COVID- requested by ACCC
19 pandemic
National Pharmaceutical NPSA and its members To coordinate activities • Providing fortnightly 9 October 2020 –
Services Association and Community Service for the purpose of updates to ACCC 30 September 2021
(NPSA) Obligation Distributors promoting continual, fair • Providing information
and equitable access to requested by ACCC
medicines and pharmacy
products during the
COVID-19 pandemic
Medicines Australia (MA) MA and its members and To implement a • Providing fortnightly 16 October 2020 –
the Generic and coordinated strategy for updates to ACCC 24 September 2021
Biosimilar Medicines the supply of essential • Advising government
Association and its medicines and related health agencies if
members supplies during the participants intend to
COVID-19 pandemic coordinate in relation
to public tenders
klgates.com 10MEDICINES & PHARMACEUTICALS
Authorisation Key Participants Conduct Conditions Duration
Australia New Zealand ANZIGA and its To exchange information • Notifying ACCC prior 23 October 2020 –
Industrial Gas Association members, including Air and make arrangements to engaging in conduct 30 September 2021
(ANZIGA) Liquide, BOC Limited and required to ensure • Providing regular
Coregas security of supply of updates to ACCC
medical oxygen to • Providing information
hospitals and similar requested by ACCC
medical facilities in the
event of significant
demand increases or
supply constraints during
the COVID-19 pandemic
klgates.com 11ENERGY & RESOURCES
Authorisation Key Participants Conduct Conditions Duration
Minerals Council of MCA and other State and To coordinate and • Notifying ACCC of any 18 September 2020 –
Australia (MCA) Territory minerals and collaborate in response to material arrangements 30 June 2021
resources councils disruptions in the supply • Providing information
of certain critical services requested by ACCC
and supplies caused by • Providing regular
the COVID-19 pandemic updates to ACCC
Australian Energy Council AEC and its members, To share information, • Notifying ACCC of 23 September 2020 –
Limited (AEC) including AGL, Aurora, discuss and enter into future participants 30 June 2021
EnergyAustralia, Origin arrangements to provide • Notifying ACCC of any
and Snowy Hydro financial and/or other meetings
relief to retail energy • Providing monthly
customers facing financial updates to ACCC
difficulty • Arrangements must
provide for termination
if conduct no longer
authorised
klgates.com 12ENERGY & RESOURCES
Authorisation Key Participants Conduct Conditions Duration
Australian Institute of AIP and its members, To cooperate to improve • Reporting relevant 2 October 2020 –
Petroleum (AIP) including BP, Caltex, the security of supply of meetings to ACCC 31 March 2021
Mobil and Viva Energy fuel products and • Providing information
facilitate the efficient use requested by ACCC
of refining and fuel • ACCC must approve
storage capacity future participants
Australian Energy Market AEMO and gas and To ensure the ongoing • Complying with 9 October 2020 –
Operator (AEMO) electricity industry safety, security, or Reporting and 31 May 2021
participants reliability of energy Communications
systems, including by Protocol
sharing information, • QLD, WA and NT LNG
coordinating repairs and producers to comply
maintenance and sharing with additional
essential inputs and protocols
personnel • Arrangements must
provide for termination
if conduct no longer
authorised
• ACCC must approve
future participants
klgates.com 13OTHER INDUSTRIES
Authorisation Key Participants Conduct Conditions Duration
NBN Co Limited (NBN) NBN, Telstra, Optus, To discuss, agree, and • Complying with 2 October 2020 –
and others TPG, Vocus and Aussie implement capacity Reporting and 31 March 2021
Broadband optimization strategies for Communications
the National Broadband Protocol
Network, solely for the • NBN providing retail
purpose for responding to services providers who
changes in demand on are not participating
the Network resulting with any pertinent
from the COVID-19 information about
pandemic measures which might
affect their business
activities
Regional Express Pty Ltd Rex, Qantas and Virgin To coordinate flight • Must not set fares for 3 October 2020 –
(REX) schedules to efficiently coordinated flights that 30 June 2021
manage capacity and are higher than
share revenue on ten equivalent fares as at
regional air routes 1 February 2020
• Providing monthly
updates to ACCC and
other reporting
requirements
klgates.com 14OTHER INDUSTRIES
Authorisation Key Participants Conduct* Conditions* Duration*
Ingham’s Group Ltd, Ingham’s, Turosi, To coordinate to minimize • Providing weekly Until 31 December 2020
other chicken processors Hazeldene’s and the the disruption that would reports to ACCC
and the Australian Australian Chicken Meat otherwise be caused to • Providing information
Chicken Meat Federation Federation chicken meat processing requested by ACCC
and supply by the
Draft Determination – restrictions imposed by
Interim Authorisation the Victorian Government
currently in place in response to the
COVID-19 pandemic
*proposed
klgates.com 15You can also read
