The ACCC today announced that Scott Gregson would assume the role of acting Chief Operating Officer effective from Monday 27 April 2020 following the retirement of Chief Operating Officer Rayne de Gruchy.

Ms de Gruchy joined the ACCC in 2010 and commenced in her current role in 2014, driving and shaping the ACCC’s culture to enhance its capabilities, performance and impact. She had announced her departure earlier this year and assisted Mr Gregson in the transition.

Ms de Gruchy was awarded the Public Service Medal in 2003 and was appointed a Member of the Order of Australia in 2008 for her contribution to public administration.

Before joining the ACCC, she led the Australian Government Solicitor as its inaugural Chief Executive Officer from 1999 to 2010, creating a successful government business enterprise in Australian Government ownership.

A lawyer by profession, Ms de Gruchy also held other senior executive positions in the public sector, been a non-executive director of a public company and practised law as a banking and finance partner of the law firm now known as Herbert Smith Freehills.

“We will miss Rayne’s calm and measured guidance and advice, and wish her and her family well in her much deserved retirement,” Mr Sims said.

“We thank Rayne for her outstanding career of public service and the pivotal role she has played in her time at the ACCC. Indeed, the ACCC owes much of its governance, culture, flexible working practices and success to her,” ACCC Chair Rod Sims said.

Mr Gregson spent most of his career in enforcement roles at the ACCC. His most recent role was as executive general manager of its Merger and Authorisation Review Division.

Recruitment for the permanent appointment for the COO position is expected to go ahead later in the year.

The Federal Court has ordered that STA Travel Pty Ltd (STA Travel) pay $14 million in penalties for making false or misleading claims when advertising its MultiFLEX Pass product.

STA Travel admitted that, between March 2014 and August 2019, it made misleading representations in MultiFLEX Pass advertising that consumers who bought the airfare add-on could change their flights without paying fees or charges.

“Consumers were misled into purchasing the MultiFLEX Pass on the representation that they would not have to pay anything further for date changes to their flights, when, in fact, STA often charged consumers hundreds of dollars for changing their flights” ACCC Commissioner Sarah Court said.

In many cases, STA Travel’s charges were not reflective of additional fees imposed by the airline. For example, in almost a quarter of cases where a customer was charged extra by STA Travel, the amount was more than double the additional airfare and tax imposed by the airline.

“In 12 per cent of cases, STA Travel charged MultiFLEX Pass customers to make a change to a flight although the airline itself had not charged STA Travel anything at all for the change,” Ms Court said.

“These penalties serve as a timely reminder to all travel businesses that they must not misrepresent the costs applicable when travel services are changed.”

The MultiFLEX Pass cost up to $149 to purchase upfront. Between 2015 and 2019, STA Travel estimates it sold on average approximately 16,000 MultiFLEX Passes per year.

STA Travel admitted liability and made joint submissions with the ACCC to the Federal Court. STA Travel will also contribute to the ACCC’s legal costs.

Notes to Editors

The ACCC initiated proceedings against STA Travel in March 2019 and the proceedings are unrelated to any COVID-19 issues.

Due to the COVID-19 pandemic, the ACCC is assessing the impacts on consumers and working with the travel industry more broadly. Given the circumstances, the ACCC is urging all businesses to treat customers fairly in these exceptional times.

More information on consumer rights during the COVID-19 pandemic can be found here: COVID-19 (coronavirus) information for consumers.

Background:

STA Travel is a national supplier of travel and tourism services. Its advertising targets students and young people and emphasises discounts and flexibility.

STA Travel promoted the MultiFLEX Pass via multiple channels including its website, brochures/flyers, in store posters, a YouTube video and in-store LCD screen displays.

STA Travel sold a range of MultiFLEX Passes to consumers, namely:

• the ONEFlex Pass, costing $49 and allowing one flight date change;
• the ‘3 Change Pass’ or ‘Multiflex Pass’, costing $99 and allowing three flight date changes; and
• the ‘Unlimited’ or ‘Ultimate’ change pass, costing $149 and allowing unlimited flight date changes.

An example of one of STA Travel’s misleading advertisements is below:

Maintaining profits was a major consideration for the big four banks as they weighed whether to reduce mortgage rates in line with Reserve Bank of Australia cash rate cuts during 2019, the ACCC has found.

The ACCC’s Home Loan Price Inquiry interim report, released today, shows that the big four banks considered various factors as they decided whether to pass on the RBA’s June, July and October 2019 rate cuts. But recovering profits was central to their decisions to not always fully pass through the lower rates to mortgage customers.

“The banks were attempting to shore up their profitability during a period of low interest rates,” ACCC Chair Rod Sims said.

“It was their strong preference, after the RBA’s cuts, not to further reduce the rates customers were earning on some deposit products as they approached zero per cent.”

“The banks’ reluctance to cut these deposit rates led them to anticipate lower profits, which they aimed to recover by not always fully passing through cash rate cuts to their mortgage customers,” Mr Sims said.

The ACCC’s analysis also found that the big four banks benefitted from a sustained decrease in their funding costs during much of 2019. While headline rates for owner-occupier home loans with principal and interest repayments fell overall during 2018 and 2019, the banks’ funding costs fell even more over the same period.

“We recognise that much has changed in the economic and funding environment since last year. The COVID-19 pandemic has shifted priorities and the banks are playing an important role in supporting the economy,” Mr Sims said.

“However, the inquiry findings shed an important light on bank decision making and raise questions about whether the banks could, at the time, have passed on a higher proportion of those RBA cash rate cuts to their mortgage customers.”

The ACCC’s Home Loan Price Inquiry interim report also shows that although average interest rates charged by the big four banks on home loans fell during 2019, a lack of price transparency and higher interest rates for existing loans continued to cost customers.

The interim report examines home loan prices charged by the big four banks between 1 January 2019 and 31 October 2019. It found that home loan pricing practices continue to make it difficult for consumers to compare different mortgage products.

Headline rates did not accurately reflect the price most big four bank customers actually paid for their home loans, because the overwhelming majority of customers received discounts, including opaque discretionary discounts.

“Given the economic disruption, uncertainty and job losses stemming from the COVID-19 pandemic, many consumers may not be inclined to shop around and ask for discounts from their banks right now,” Mr Sims said.

“However, our analysis shows how that even a small further reduction in interest rates could potentially save thousands of dollars over the life of a mortgage. Consumers should consider this carefully when it is time to re-engage with their lender.”

For example, a customer with an average-sized new, owner-occupier, principal and interest mortgage of $386,000 could save about $5000 on interest payments in the first year if they went from having no discount to receiving the big four banks’ average discount of 128 basis points.

At the end of September, customers with new owner-occupier loans with principal and interest repayments were paying, on average, 26 basis points less than customers with existing loans. The difference was usually even more significant for customers with older loans.

The ACCC’s final report, scheduled for release later this year, will consider barriers to consumers switching to alternative home loan suppliers.

Further information at Home loan price inquiry

Background

On 14 October 2019, the Treasurer, the Hon. Josh Frydenberg MP, issued a direction to the ACCC to conduct an inquiry into the market for the supply of home loans. The specific matters the ACCC was directed to take into account included:

• prices charged for home loans since 1 January 2019, including:
  • the difference between advertised interest rates and interest rates paid by customers
  • the difference between interest rates paid by new and existing customers
  • home loan suppliers’ pricing decisions following changes in the RBA’s target for the cash rate, including the extent to which changes were due to suppliers’ cost of funds and the timing of the suppliers’ announcements
• impediments to consumers refinancing to alternative home loan suppliers.

The interim report focuses on the first issue regarding the prices charged for home loans between 1 January 2019 and 31 October 2019 by the big four banks, which account for close to 80 per cent (by value) of home loans held by authorised deposit-taking institutions in Australia. The final report will consider the second issue, impediments to consumer switching.

The big four banks are Australia and New Zealand Banking Group, Commonwealth Bank of Australia, National Australia Bank, and Westpac Banking Corporation.

In preparing the interim report, the ACCC used its compulsory information gathering powers to obtain information and documents from the big four banks, and supplemented its analysis with data supplied by the RBA and the Australian Prudential Regulation Authority. 

The findings in the report reinforce and build on those in the ACCC’s earlier Residential Mortgage Price Inquiry.

Bob Jane Corporation Pty Ltd (Bob Jane) has given the ACCC a court-enforceable undertaking to comply with its obligations under the Franchising Code of Conduct in relation to renewal and extension of franchising agreements.

The ACCC was concerned that Bob Jane failed to comply with its obligations under the Code relating to end of term and renewal of agreements. In particular, Bob Jane failed to notify some franchisees whether it intended to renew or extend their franchise agreements at least six months before the expiry of their agreements.

The ACCC was also concerned that it extended the term of certain franchise agreements without first providing required documentation to franchisees and obtaining a written statement that the franchisees had received, read and had an opportunity to understand certain documentation.

“Under the Franchising Code, franchisors must notify franchisees in writing whether they intend to extend or renew the agreement prior to the expiry of the agreement,” ACCC Deputy Chair Mick Keogh said.

“This is an important obligation as it allows franchisees to make informed decisions about the future direction of their business.”

“Franchisors must ensure they comply with their obligations under the Code. We took this action because we were concerned that Bob Jane failed to meet a number of its obligations,” Mr Keogh said.

Bob Jane has acknowledged that its conduct was likely to have contravened the Franchising Code of Conduct and section 51ACB of the Competition and Consumer Act 2010. 

As part of the undertaking, Bob Jane has agreed not to terminate any franchise agreements operating under interim arrangements without providing six months’ written notice.

As required by the Code, it will also obtain written notice from franchisees that they have received, read and had a reasonable opportunity to understand disclosure documents and the Code before entering into, renewing, transferring or extending the term or scope of franchise agreements.

Bob Jane has also undertaken to implement and maintain a compliance program for three years.

“Ensuring small businesses receive the protections of competition and consumer laws, with a focus on the Franchising Code, is a current compliance and enforcement priority for the ACCC,” Mr Keogh said. 

“Franchisors often have a stronger bargaining position in their dealings with franchisees, and we will continue to investigate and take action against franchisors where we believe there has been a potential breach of the Code.”

A copy of the undertaking can be found at Bob Jane Corporation Pty Ltd.

Background

Bob Jane, trading as Bob Jane T-Marts, operates a national network of franchised and company-owned tyre retail stores supplying tyres for a wide range of vehicles, and tyre and car maintenance-related services.

The Franchising Code of Conduct is a mandatory industry code across Australia that regulates the conduct of franchising participants towards each other. The ACCC regulates the Code and investigates alleged breaches.

In 2019, a Franchising Taskforce was established to provide advice to the Government to inform the Government’s response to the recommendations made to the Parliamentary Joint Committee Inquiry into franchising. 

On 11 November 2019, the Taskforce released a Consultation Regulation Impact Statement (RIS) for public consultation setting out identified problems with the franchising sector and possible options for government action.

The ACCC’s submission outlines the ACCC’s view that serious consideration should be given to a different regulatory model to address the fundamental concerns that persist in the franchising sector, rather than the incremental changes to the Code currently being considered by the Franchising Taskforce.

The ACCC’s submission in response the RIS can be found on the Department of Industry, Science, Energy and Resources website.

More information for the franchising sector can be found on the ACCC’s website.

The Full Court of the Federal Court has today delivered its judgment on the ACCC’s appeal in relation to proceedings brought to stop Pacific National’s acquisition of the Acacia Ridge Terminal in Brisbane by Aurizon (ASX: AZJ).

The ACCC had appealed the 2019 judgment of the Federal Court which held that the acquisition would not be likely to substantially lessen competition due to an undertaking that Pacific National had offered the Court.

While the ACCC was successful in relation to a number of legal issues, the Full Court found there was insufficient evidence to establish that the acquisition was likely to result in a substantial lessening of competition, and dismissed the ACCC’s appeal.

Although the majority of the Full Court agreed with the ACCC’s position on the meaning of ‘likely’, the case hinged on the ACCC establishing the likelihood of another player seeking to enter the market in the next five to ten years. The Full Court considered that the prospect of new entry was no more than speculative.

“This was a particularly important case for Australia’s merger laws, and the outcome demonstrates the real difficulty of applying the substantial lessening of competition provisions in the legislation,” ACCC Chair Rod Sims said.

The result of the Full Court’s decision is that Pacific National’s acquisition of the Acacia Ridge Terminal may proceed, without the access undertaking accepted by the trial judge.

“This is also a sad day for the economy, because the ACCC’s view is that the prospects of competition in rail freight have been significantly diminished and the impacts of this will be with us for more than a decade,” Mr Sims said.

The ACCC’s case was that Pacific National’s ownership of the Acacia Ridge Terminal would allow it to effectively prevent access to new entrants, entrenching Pacific National’s position as the dominant rail freight carrier on the east coast.

“We will now carefully consider the Full Court’s judgment. The ACCC will continue to consider what changes are needed to make Australia’s merger laws work in the way they need to, to safeguard the economy from highly concentrated markets,” Mr Sims said.

Notes to editors

The term ‘intermodal’ freight is used to describe the carriage of general freight usually in a container using two or more modes of transportation, such as truck and rail. ‘Intermodal rail linehaul’ refers to the rail leg of the movement of intermodal freight. ‘Steel rail linehaul’ refers to similar services that are provided in respect of steel products.

An intermodal terminal, such as the Acacia Ridge Terminal, comprises infrastructure with a connection to a rail line where containers can be transferred between transportation modes.

Background

The ACCC commenced proceedings on 18 July 2018 alleging that Pacific National’s acquisition of the Acacia Ridge Terminal from Aurizon would have the likely effect of substantially lessening competition in breach of section 50 of the Competition and Consumer Act 2010.

The ACCC was concerned that the acquisition of the Acacia Ridge Terminal would deter a new entrant from providing interstate linehaul services in competition with Pacific National.

The ACCC had commenced a public investigation of Aurizon’s proposed exit plans, including the proposed acquisitions by Pacific National of the Acacia Ridge Terminal and Queensland intermodal business on 27 October 2017. The ACCC issued a statement of issues on 15 March 2018.

The Federal Court dismissed the ACCC’s proceedings on 15 May 2019. The trial judge found that, with Pacific National’s undertaking offered to the Court, the acquisition of the Acacia Ridge Terminal would not be likely to substantially lessen competition.

The ACCC lodged an appeal on 27 June 2019. The appeal, and cross appeals by Pacific National and Aurizon, were heard before the Full Court of the Federal Court from 17 – 20 February 2020.

Commissioner Cristina Cifuentes will leave the Australian Competition and Consumer Commission on 3 July 2020 after more than seven years in the role, which she held concurrently with nine years as a board member of the Australian Energy Regulator.

Ms Cifuentes was appointed as a Commissioner of the ACCC in May 2013 for a five-year term and then reappointed in 2018.

“Cristina has been one of Australia’s leading infrastructure regulators for a long time and has made an outstanding contribution to the ACCC and AER, and played a large role on the international stage in relation to a wide range of regulatory issues,” ACCC Chair Rod Sims said.

“Perhaps even without even realising it, Australians have benefited immensely from Cristina’s extraordinary breadth of experience and knowledge, particularly in the energy, transport, telecommunications and finance sectors.”

“Cristina’s experience and mix of skills has been invaluable in shaping many of the ACCC’s key decisions.”

During her time at the ACCC, Ms Cifuentes chaired the ACCC’s Communications and Infrastructure committees, which oversee the ACCC’s regulatory role in key infrastructure in areas such as fuel, telecommunications, wheat ports, rail, and water.

Mr Sims says Ms Cifuentes’ contribution will be greatly missed by many across the ACCC and AER.

“Cristina has also been a champion for women and people from cultural and linguistically diverse communities within the ACCC and AER and a mentor to many,” Mr Sims said.

“All of us at the ACCC and AER wish Cristina the very best for her future endeavours both professionally and personally,” Mr Sims said.

Ms Cifuentes will also step down from her roles as an Associate Member of the Australian Communications and Media Authority and as Australia’s delegate to the OECD Network of Economic Regulators.

Background:

Before joining the ACCC, Ms Cifuentes held a number of directorships, including with the Hunter Water Corporation, First State Super Trustee Corporation and NSW T Corp. Her career has spanned both the public and private sectors, including positions at the Reserve Bank of Australia, the New South Wales Treasury and the Australian Securities Commission. She was a tribunal member of the NSW IPART between 1997 and 2006.