Application by Sea Swift Pty Ltd - [2015] ACompT 5

AUSTRALIAN COMPETITION TRIBUNAL
Application by Sea Swift Pty Ltd [2015] ACompT 5

Citation: Application by Sea Swift Pty Ltd [2015] ACompT 5

Re: APPLICATION FOR MERGER AUTHORISATION OF THE PROPOSED ACQUISITION OF CERTAIN ASSETS OF TOLL MARINE LOGISTICS AUSTRALIA’S MARINE FREIGHT OPERATIONS

By: SEA SWIFT PTY LTD

Proposed Intervenor: THE MARITIME UNION OF AUSTRALIA

File number: ACT 9 of 2015

Tribunal: MANSFIELD J (PRESIDENT)
MR GF LATTA (MEMBER)
MR RF SHOGREN (MEMBER)

Date of decision: 21 October 2015

Date of hearing: Heard on the Papers

Place: Adelaide

Category: No catchwords

Number of paragraphs: 13

Counsel for the Applicant: G Cass-Gottlieb

Solicitor for the Applicant: Gilbert+Tobin Lawyers

Counsel for the Australian Competition and Consumer Commission: S Uthmeyer

Solicitor for the Australian Competition and Consumer Commission: DLA Piper Australia

Counsel for the Intervenor, Toll Holdings Ltd: G Carter

Solicitor for the Intervenor, Toll Holdings Ltd Minter Ellison
Table of Corrections

26 October 2015 In paragraph 13, correction made to typographic error amending 27 October 2015 to 30 October 2015.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 9 of 2015

RE:
APPLICATION FOR MERGER AUTHORISATION OF THE PROPOSED ACQUISITION OF CERTAIN ASSETS OF TOLL MARINE LOGISTICS AUSTRALIA’S MARINE FREIGHT OPERATIONS

APPLICANT:
SEA SWIFT PTY LTD

PROPOSED INTERVENOR: THE MARITIME UNION OF AUSTRALIA

TRIBUNAL:

MANSFIELD J (PRESIDENT)
MR GF LATTA (MEMBER)
MR RF SHOGREN (MEMBER)

DATE OF DIRECTION:

21 OCTOBER 2015

WHERE MADE:

ADELAIDE

THE TRIBUNAL DIRECTS THAT:
1.The Maritime Union of Australia have leave to intervene in this application, limited to making such submissions and (subject to the further leave of the Tribunal) adducing such evidence and cross-examining other witnesses as it may be advised on the topic of any detriment to the public by reason of any risk to the employment or prospective employment of its members by the applicant or by Toll Holdings Ltd in the Northern Territory or in far north Queensland.
2.The Maritime Union of Australia, if it intends to seek leave to adduce any evidence at the hearing on that issue, do lodge and serve on the applicant, the Australian Competition and Consumer Commission and on Toll Holdings Ltd by their respective solicitors the proposed evidence by 30 October 2015.
3.The applicant, the Australian Competition and Consumer Commission, and Toll Holdings Ltd have leave to lodge and serve within eight working days such proposed evidence in response as it may be advised.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 9 of 2015

RE:
APPLICATION FOR MERGER AUTHORISATION OF THE PROPOSED ACQUISITION OF CERTAIN ASSETS OF TOLL MARINE LOGISTICS AUSTRALIA’S MARINE FREIGHT OPERATIONS

BY: SEA SWIFT PTY LTD

PROPOSED INTERVENOR:
THE MARITIME UNION OF AUSTRALIA

TRIBUNAL:

MANSFIELD J (PRESIDENT)
MR GF LATTA (MEMBER)
MR RF SHOGREN (MEMBER)

DATE:

21 OCTOBER 2015

PLACE:

ADELAIDE

REASONS FOR DECISION

Following directions given on 30 September 2015, The Maritime Union of Australia (MUA), a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) on 2 October 2015 applied to intervene in this proceeding. It says it has constitutional coverage of employees in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACompT 5
Decision Date: 21 October 2015

CaseChat Overview and Summary

Sea Swift Pty Ltd applied to the Australian Competition Tribunal for authorisation of a proposed merger involving the acquisition of certain assets of Toll Marine Logistics Australia’s marine freight operations. The Maritime Union of Australia sought leave to intervene in the application, arguing that the merger could result in employment risks for its members, lower terms and conditions across the maritime sector, and increased transport pricing and reduced access for communities in the Northern Territory and Far North Queensland. Sea Swift opposed the intervention application, while the Australian Competition and Consumer Commission (ACCC) took a neutral stance.

The Tribunal was tasked with determining whether the Maritime Union of Australia should be allowed to intervene in the merger application and, if so, under what conditions. The Tribunal considered whether the union had a real and substantial interest in the outcome of the merger, sufficient to justify the time and cost of its participation. The Tribunal also considered the role of the ACCC in such applications and the potential relevance of the union's arguments to the public interest.

The Tribunal decided to allow the Maritime Union of Australia to intervene in the merger application, but limited its intervention to the issue of potential employment risks to its members employed by Sea Swift and Toll. The Tribunal reasoned that the union's arguments about the potential for lower terms and conditions across the maritime sector and increased transport pricing in remote areas were speculative and outside the scope of the merger authorisation process. The Tribunal set a deadline for the union to provide any proposed evidence to the parties and granted the other parties the right to respond within a specified timeframe.

The Tribunal's decision highlights the importance of balancing the interests of various stakeholders in merger authorisation applications and the need to ensure a fair and efficient hearing process. The limited intervention granted to the Maritime Union of Australia allows it to present relevant arguments and evidence on the potential employment risks to its members, while preventing unnecessary duplication and ensuring that the hearing remains focused on the core issues.

Orders