Community problems require community solutions

One encouraging aspect of the national response to the COVID-19 pandemic has been the flexible approach of the ACCC, which has demonstrated both a willingness and an ability to work collaboratively with businesses to mitigate and minimise the otherwise catastrophic impacts that COVID-19 could have on our economy.

The ACCC has moved quickly to ensure that the Competition and Consumer Act 2010 (‘CCA’) will not unnecessarily stand in the way of business initiatives that are in the best interests of the public during this time.  We have seen the ACCC quickly move to authorise businesses to take action which might otherwise raise competition issues across the banking, aviation, retail and medical equipment industries, amongst other.  These initiatives include:

  • Authorising medical industry groups including the Medical Technology Association of Australia, Medicines Australia (MA), the Generic Biosimilar Medicines Association (GBMA) and their respective members to share information between each other, co-ordinate orders and supply requirements, prioritise requests and jointly tender to ensure the continued supply of critical medicine and COVID-19 medical equipment. The authorisation was granted to assist companies to urgently address potential shortages or other constraints to the supply of COVID-19 medical equipment and to jointly address the potential for shortages and address potential supply chain issues.
  • Authorising Rex (Regional Express) to coordinate flight schedules with Virgin and Qantas on ten regional flight routes during the COVID-19 pandemic. The authorisation was granted to assist airlines who are significantly challenged due to escalating travel restrictions with a view to enabling them to maintain the important routes in the future. This authorisation is conditional on the airlines charging fares no higher than those in place as at 1 February 2020.
  • Authorising the Australian Banking Association (‘ABA’) and banks to work together to implement relief packages for individuals and businesses affected by COVID-19, including options to defer principal and interest repayments for loans, offering deferred insurance premium payments, and refunds of unused premiums for any insurance policy that needs to be cancelled as a result of the pandemic, without charging administration or cancellation fees. The authorisations enable ABA and the banks to coordinate to ensure that customers can access services, including some counter services, in various key locations.
  • Authorising supermarkets to coordinate with each other when working with manufacturers, suppliers and logistics suppliers with a view to ensuring reliable and fair access to groceries.
  • Authorising shopping centre owners and managers to implement rent relief for small to medium tenants facing hardship. This will also apply to tenants that are franchisees and licensees which have a turnover of up to $50 million per annum.
  • Authorising the Australian Energy Market Operator Limited (AEMO) to allow gas and electricity industry participants to work together with a view to ensuring the secure and reliable supply of energy and to mitigate the risk of outages, including by sharing resources where necessary to maintain and operate energy infrastructure efficiently.
  • Authorising the Australian Institute of Petroleum (AIP) its members, and suppliers of crude oil and refined fuels, importers, suppliers of storage facilities and trucking or delivery services and wholesalers to co-operate to ensure that fuel supplies remain available during the pandemic. Importantly, the approval does not allow fuel companies to coordinate prices.
  • Authorising members of the Australian Securitisation Forum (ASF) to work together to assist smaller lenders to maintain liquidity and issue loans to consumers and small businesses. This is especially important considering that many small businesses and individuals rely on small lenders. The authorisation should allow these lenders to continue supporting small businesses by offering affordable credit.

What the above demonstrates is that during this unprecedented time, nothing is off the cards provided it will not harm consumers or members of the public. The ACCC is eager to work with businesses to maximise the prospects of survival during the crisis. If you have an idea but are not sure of how it fits in with the regulators’ priorities during this period, contact Rebecca Halkett and the regulatory team at Kain Lawyers.

Other actions taken by the ACCC in response to the COVID-19 pandemic include:

  • Establishing a COVID-19 Taskforce to communicate directly with businesses to educate and inform them about their obligations in relation to cancellations, refunds and suspensions of services as a result of the pandemic.
  • Focusing on affordability issues in sectors such as energy, communications and petrol and putting measures in place to prevent excessive pricing.
  • Minimising the regulatory burden of enforcement activities as far as possible with particular consideration for small businesses. For example, the ACCC will minimise the use of compulsory examinations and, where they are necessary, will conduct them by phone or video conference.
  • Continued consideration for proposed mergers with the view that some applications/reviews may need to be extended in the circumstances.
  • Reconsideration of exemptions in relation to infrastructure regulation if current obligations become impracticable. The ACCC will continue to monitor important sectors, including the performance of broadband services, the price of fuel, and the operation of energy markets.