Since the declaration of the COVID-19 pandemic, the Australian Competition and Consumer Commission (ACCC) has received a number of applications for authorisation to permit collective behaviour between competitors that would otherwise be prohibited by the Competition and Consumer Act 2010 (Cth) (CCA).

The CCA requires businesses to make independent decisions about how their business operates. To the extent a business does not operate independently, and acts in a manner which is anti-competitive, that business may be in breach of the CCA.

However, while the CCA prohibits a range of anti-competitive conduct, it also includes a process to enable businesses to seek the approval of the ACCC to engage in conduct which might ordinarily be presumed anti-competitive in circumstances in which that conduct can actually have a pro-competitive effect. That is, the conduct may actually result in a public benefit and it is in the public interest that it should be able to occur.

Since 19 March 2020, the ACCC has granted interim authorisation to a number of applications from businesses to enable conduct to occur so as to respond nimbly to the circumstances brought about by the pandemic. The timing that ordinarily applies to the ACCC process to review such applications, conduct public inquiries and issue interim approval pending a final authorisation, has been fast-tracked in response to the pandemic.

The applications for authorisation lodged with the ACCC between 19 March and 30 April 2020 in response to the pandemic include the following:

• Australian Banking Association on behalf of its retail member banks to:
  • Agree and implement a support package for small business customers experiencing financial difficulties as a result of the pandemic, and
  • Agree and implement mechanisms to provide financial relief and assistance to their customers experiencing financial difficulties as a result of the pandemic.
• Coles Group Limited on behalf of itself and other participating supermarkets including Aldi, Woolworths and Metcash to engage in coordinated activities related to the pandemic, including fair and equitable distribution of certain fresh food, grocery items, household products and liquor which had been excessively stockpiled in the lead up to the declaration of the pandemic and had impacted on supply of these items to members of the public.
• Regional Express Pty Limited (operator of Rex Airlines) to coordinate flight schedules and share revenue between itself, Qantas and Virgin Australia on 10 regional routes impacted by the pandemic.
• Medical Technology Association of Australia on behalf of itself, its members and other suppliers and distributors of certain medical equipment to implement a coordinated strategy in relation to the supply of medical equipment and supplies to address shortages.
• National Pharmaceutical Services Association on behalf of itself, its members and distributors to coordinate to stabilise the supply of medicine and pharmacy products in response to the pandemic.
• Australian Energy Market Operator on behalf of itself and industry participants to coordinate a response to the pandemic to ensure the reliable operation of Australia’s energy systems, support to retail, business and government customers, minimise outages and ensure the availability of sufficient resources to maintain and operate energy infrastructure.
• NBN Co Limited on behalf of itself and members of a special working group – including Telstra, Optus, Vodafone Hutchison, TPG and Vocus, the five largest communications retail service providers in Australia – to enable the working group members to collaboratively address issues arising from the pandemic, including a coordinated industry approach to business and vulnerable retail consumers, and a series of capacity optimisation strategies.
• Medicines Australia on behalf of itself, Generic and Biosimilar Medicines Association and their respective members, to implement a coordinated strategy for the supply of essential medicines and related supplies.
• Private Healthcare Australia Limited on behalf of itself, Members Health Fund Alliance and their respective members to implement a coordinated approach to private health insurance coverage of treatment which substitutes for face-to-face treatment or hospital admission as a result of the pandemic, and to provide financial relief regarding health insurance premiums.
• Australian Securitisation Forum on behalf of itself and members to develop a coordinated response to the implementation of the Structured Finance Support Fund, part of the federal government’s $15 billion economic stimulus package.
• Suncorp Group Limited on behalf of itself, Allianz Australia Limited, QBE Insurance Australia Limited, other insurers and brokers to coordinate and implement relief measures for SME policyholders financially impacted by the pandemic.
• Scentre Group and Shopping Centre Council of Australia Limited on behalf of themselves and their members to take coordinated rent relief action to assist SME tenants financially impacted by the pandemic.
• Australian Institute of Petroleum on behalf of itself and oil refiner members to engage in conduct to ensure the security of the supply of fuel products and facilitating the efficient use of refining capacity and fuel storage capacity in Australia during and after the pandemic period.
• Financial Services Council on behalf of its member life insurance companies to ensure frontline health workers are not denied life insurance, are not charged higher premiums and do not have benefits excluded due to the risk of exposure to COVID-19.
• 7-Eleven Stores Pty Limited to discuss temporary closure or reductions in trading hours with its franchisees impacted by the pandemic.
• Virgin Airlines Pty Limited on behalf of itself and other operators of domestic and international short haul passenger and cargo flights to coordinate flight schedules.
• Australian Energy Council on behalf of itself and energy retailers to coordinate financial and other relief to business and retail energy users impacted by the pandemic.
• Australian Retailers Association on behalf of itself and its members to collectively negotiate with landlords regarding support available for retail tenants impacted by the pandemic.
• Minerals Council of Australia on behalf of itself and certain other mining industry associations to coordinate to share information about, and rationalise demand for, critical mining supplies and services, including scheduling and supply chain activities impacted by the pandemic.
• Each Australian state and territory’s department or ministry of health (other than the ACT) on behalf of the relevant state or territory and certain private healthcare facility owners and others to coordinate to maximise healthcare capacity and ensure the efficient coordination of public and private healthcare services in each state or territory during and after the pandemic.

While the ACCC has granted interim authorisation permitting the above conduct to occur, it has not done so lightly and has, for many of the applications, only provided interim authorisation subject to the imposition of a number of conditions. It has also cautioned that granting of interim authorisation is no guarantee that the conduct will receive final authorisation on a longer term basis.

The above content is commentary rather than legal advice and was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.