Notification is an alternative process to authorisation as a means for businesses to obtain protection from legal action for exclusive dealing and collective bargaining

Notification is an alternative process to authorisation as a means for businesses to obtain protection from legal action for exclusive dealing and collective bargaining.

Exclusive dealing is where a business trading with another imposes restrictions on the other business’ freedom to choose with whom, in what, or where it deals and is prohibited under the CCA in certain circumstances. Third line forcing is a type of exclusive dealing conduct which involves the supply of goods or services subject to a condition that the buyer must also acquire certain goods or services from a third party. Third line forcing conduct is prohibited outright while other forms of exclusive dealing are only a breach of the CCA if they substantially lessen competition.

Lodging a notification with the ACCC provides protection from legal action automatically from the lodgement date, or soon after, in the case of third line forcing conduct which remains in force unless revoked by the ACCC. Notifications can be reviewed by the ACCC at any time to assess whether the conduct results in a net public benefit.

Significant notifications

EQUESTRIAN AUSTRALIA LIMITED (Equestrian Australia) - NOTIFICATION - N98410 Equestrian Australia lodged a notification on 30 July 2015 seeking to address the risks that may arise for horses in Hendra virus affected areas attending equestrian events. The notification enables Equestrian Australia, or event Organising Committees acting as its agents, to require that horses are vaccinated against the Hendra virus as a condition of entry into particular events. The Australian Pesticide and Veterinary Medicines Authority (APVMA), the government authority responsible for the assessment and registration of pesticides and veterinary medicines, recently approved registration of the Hendra virus vaccine. Nevertheless, a large number of people expressed significant concerns about the notified conduct; including that there had been numerous adverse reactions to the vaccine and boosters which had impacted the value of elite competition and breeding horses. Many people also argued that since there was no recorded case of the Hendra virus being transmitted at an equestrian event, the vaccination requirement was unnecessary. The ACCC understood the APVMA was aware of these concerns and remained satisfied with the vaccine’s registration and the level of adverse reactions remained within a normal range for a relatively new vaccine. Biosecurity Queensland, the Queensland Department of Health and Queensland Workplace Health & Safety advised that vaccination are the single most effective way to address the risk of infection from the Hendra virus. These agencies supported individual equestrian Organising Committees being able to decide, based on an informed risk assessment, to only allow horses to compete if vaccinated. The ACCC also received a number of submissions in support of the Notification, including from equestrian clubs, veterinarians and equestrian event organisers. In general terms these submissions suggested the notified conduct would result in public benefits, including reducing the risk of people or horses contracting the virus, and the risk of exposure for equine veterinarians at equestrian events. There were also concerns about the liability, cost and welfare implications for organising committees associated with a suspected case of the Hendra virus at an event. The ACCC considered that having the Hendra vaccination as a condition of entry to particular equestrian events would be likely to result in public benefits by reducing the risk of transmission of the Hendra virus to other horses or to humans. This was particularly so in circumstances where the appropriate Government veterinary medicine regulatory approval body had recently completed a detailed assessment of the Hendra vaccine, and it was found it to be generally safe to use and effective against the Hendra virus. The ACCC accepted there were strong concerns from many parties in relation to the notification, and that there were detriments associated with only allowing vaccinated horses to compete in particular events including any adverse reactions to the vaccine and associated financial implications. However, the ACCC did not consider that these detriments outweighed the benefits. Accordingly on 18 December 2015 the ACCC decided to allow the statutory protection afforded by the notification for Equestrian Australia to continue.

Groups of small businesses can lodge a collective bargaining notification to obtain protection from legal action for a collective bargaining activity. The protection provided by a collective bargaining notification comes into force automatically 14 days after the notification is validly lodged and continues for three years unless the ACCC objects to it. Notifications can be reviewed at any time.