Toll loses labour case against ACCC

Toll and Asciano breached competition guidelines after a confidential labour hire scheme was exposed

By Brad Gardner

The Federal Court has found that Toll and Asciano have breached competition guidelines after a confidential labour hire scheme between both parties was exposed.

The court heard Toll Personnel’s agreement in 2007 with Asciano to provide it with casual employees had the potential to stifle competition and contravened a provision banning the sharing or secondment of employees between both companies.

The Australian Competition and Consumer Commission (ACCC) became aware of the breach after an independent audit of Toll, and Justice Peter Gray backed the ACCC in saying Toll’s actions were illegal.

"There is a serious risk that the labour hire arrangements between Toll Personnel and Asciano could provide to the Toll companies a competitive advantage, as against others using the same services of Asciano," Gray says.

"Employees of Toll Personnel providing services to Asciano might give preference to the Toll companies in the provision of those services."

Toll disputed the ACCC’s claims, launching legal action in an attempt to continue the arrangement with Asciano.

The case centred on the definition of share and secondment, and Toll argued neither occurred because an employee must work for both companies for sharing or transferring to occur.

Gray, however, rejected the assertion, accusing Toll of taking a narrow view of both terms.

"A person who has sole ownership of a cake may share it with another by giving the other part of the cake to deal with as the other sees fit," Gray says.

"The fact that no employment relationship arises between the employee and one of those persons is of no significance."

The ACCC imposed anti-sharing practices in 2006 in response to Toll’s decision to divest its rail and port assets by creating the independently-run Asciano.

Toll was not fined for the breach, with Gray saying there were no calls for a penalty to be imposed. Toll was, however, ordered to pay the ACCC’s court costs.

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