TWU enlists NRFA over ACCC cartel warning

By: Rob McKay

The pair insists Black’s rates opinion piece intentions are honest, to Bezzi

TWU enlists NRFA over ACCC cartel warning
Marcus Bezzi at the signing of an international agreement


The Transport Workers’ Union’s (TWU’s) butting heads with the Australian Competition and Consumer Commission (ACCC) is showing few signs of being resolved amicably.

A falling out between the competition watchdog and the TWU occurred last month when ACCC cartels branch director Catherine Pavey wrote to Frank Black, the union-backed Australian Trucking Association (ATA) General Council owner driver representative and a columnist with ATN sister publication Owner//Driver (O//D).

Pavey’s letter warns Black of "potentially problematic paragraphs" in Black’s O//D opinion piece on the Covid-19 pandemic.

"What does concern me is the cheap freight being offered by people taking advantage of the situation," the opinion piece says.

"This is no time for bottom feeders to seek to profit at the expense of others. We can’t afford for rates to be lowered anywhere in the industry.

"In harder times, it’s more important than ever for us to stick together and stand strong. We all feel the calling of our personal financial needs but undercutting each other to win work will only do harm to us all."

The TWU sent two letters, on June 15 and June 23, to Pavey and ACCC chair Rod Sims respectively, objecting to the ACCC raising the prospect of criminal prosecution over an opinion piece and accusing it of failing to have any industry insight.

The union has enlisted the support of owner drivers and small fleet operators body the National Road Freighters Association (NRFA) after having received an ACCC response it views as inadequate.

The ACCC letter comes two steps up from Pavey, having been signed by executive general manager specialised enforcement and advocacy Marcus Bezzi.

In it, Bezzi acknowledges "that many businesses and particularly smaller businesses like owner-drivers are facing an extremely difficult environment brought on by the global pandemic".

He also mentions that "the ACCC regularly receives reports of potential concerns during the course of the year", a sensitive  point as the TWU has raised the possibility of Australian Tucking Association (ATA) involvement in raising the issue with the ACCC, which the ATA denies.

"Our experience is that comments that encourage industry participants not to undercut each other can damage competition," the Bezzi letter states.

"Understandings between competitors about price corrode competition and are among the most serious breaches of the Competition law.

"It is for this reason that Parliament has decided that this behaviour should be subject to criminal penalties of up to ten years imprisonment.

"Ms Pavey’s letter is quite clear in indicating that the ACCC has not formed any concluded views on this issue whilst raising the relevant provisions of the CCA and associated penalties.

"My reading of Ms Pavey’s letter is that it sought to alert Mr Black to the dangerous nature of these comments.  

"You also raised concerns in your letter about the transport supply chain and potential inequities in the sector.

"If you feel that elements of the sector are engaged in unfair practices or you have any competition concerns, we would be happy to discuss these concerns and consider whether there is any appropriate action."

Read how the TWU/ACCC stoush over Black first emerged, here

The response fails to mollify the union or the NRFA.

"As two organisations whose members bear the brunt of the squeeze on rates by clients we would like to express our joint dissatisfaction at your response regarding the ACCC letter to Frank Black," TWU national secretary Michael Kaine and NRFA president and Mackinlay Transport director Gordon Mackinlay write.

"It is not price-fixing to say that small trucking business deserve to be paid fairly and it is not illegal tocall out situations where clients push rates down to the point that operators are paid below cost.

"We are shocked that the ACCC have taken such a heavy-handed approach over an opinion column which focuses on the reality of life for small trucking businesses."

They call on Bezzi to:

  • indicate what "reports of potential concerns" you received which alerted you to the column
  • point us to the relevant parts of the column which the ACCC believes constitute a "dangerous nature"
  • respond to our repeated requests for information on how the ACCC obtained Frank Black’s personal details
  • provide confirmation that the ACCC will commence a detailed inquiry into destructive competition in the road transport industry that sees those at the top of the supply chain squeezing transport operators, their employees and owner drivers like Frank into deadly circumstances.


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