ACCC gives Toll and TWU the all clear on agreements

Cooperation highlighted in Royal Commission seen as having no effect on competition

ACCC gives Toll and TWU the all clear on agreements
Rod Sims says the relevant Act was not contravened.


Critics of company cooperation with trade unions have received a hefty setback with the Australian Competition and Consumer Commission (ACCC) rejecting any competition implications for Toll’s dealings with the Transport Workers Union (TWU).

More than a year after the anti-union Independent Contractors Australia (ICA) and others brought accusations of anti-competitive conduct to the ACCC’s notice following evidence to the Royal Commission into trade union behaviour, the competition watchdog has ruled that there was no contravention of the Competition and Consumer Act 2010 (CCA).

The Royal Commission received evidence about two separate confidential deeds entered into by Toll and the TWU, in the context of negotiations for the Toll-TWU Enterprise Agreement in 2011 and 2013.

In them, Toll agreed to make annual payments to Transport Education Audit Compliance Health Organisation (Teacho), subject to the TWU meeting certain key performance indicators (KPIs).

The KPIs related to the TWU conducting audits, wage inspections or other compliance measures of one or more competitors of Toll, and Teacho providing training for Toll’s employees and contractors with respect to general compliance measures.

This included log book compliance and occupational health and safety issues.

"The ACCC closely investigated whether the alleged conduct contravened the CCA, including whether the relevant provisions had the purpose, or had or were likely to have the effect, of substantially lessening competition," ACCC Chairman Rod Sims said.

"After considering all of the information available to it, the ACCC concluded that the provisions in the two deeds did not have the purpose and were not likely to have the effect of substantially lessening competition, and did not otherwise contravene the CCA."

The ACCC says its conclusion is based on a number of factors identified during the course of its investigation, including that:

the market for road freight transport is fragmented, with no single business having a significant share of the market, so it is not likely that the provisions could have had the effect of substantially lessening competition in that market

none of the relevant provisions was given effect to, and hence there was no competitive harm from the conduct (a conclusion reached following enquiries with industry, including competitors of Toll)

there was no evidence that the purpose of the relevant provisions was to substantially lessen competition.

In reaching this conclusion, the ACCC used its compulsory powers, conducted market enquiries and sought legal advice from Senior Counsel regarding the alleged conduct.

"While the ACCC considers the provisions of the deeds did not give rise to a contravention in this case, anti-competitive conduct is an enduring priority for the ACCC and industry is on notice that if we suspect any illegal conduct in this area, we will investigate and, where appropriate, take enforcement action," Sims says.

The ACCC says it "does not generally comment on its investigations, but considers that making this announcement regarding the conclusion of this investigation was appropriate due to the public nature of the Royal Commission’s findings and previous public statements regarding the alleged conduct".

In response, Toll takes a pragmatic line of the course of events.

"Toll understood the ACCCs need to look into this matter but was always confident it had not contravened the provisions of the [Competition and Consumer] Act," Toll Group spokesman Christopher Whitefield says.

"The arrangements we entered into with the TWU were driven by our objective of continuing to improve our safety and health standards through additional training for our people, as well as a desire to raise safety and compliance standards across the industry more generally.

"As an industry leader we will continue to take actions that promote improved safety outcomes for industry participants and the communities in which we operate."

Describing the findings as a "vindication", TWU national secretary Tony Sheldon describes the Royal Commission as politically-motivated and calls on it to "stop its attacks on our members".

"Trucking is Australia’s deadliest profession with drivers 15 times more likely to die than any other profession, according to Safe Work Australia," Sheldon says.

"Other road users are affected by this also: 330 people die in truck related crashes every year.

"The Transport Education Audit Compliance Health Organisation fund was set up to assist transport workers and employers improve career pathways, training, industrial rights, research, health and safety in our industry. 

"How training and safety could ever be a point of attack by the Royal Commission beggars belief."

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