Toll's ACCC victory sets a dangerous precedent

Australia's largest transport group, Toll, has achieved an incredible victory before the Australian Competition and Consumer Commission. 

But, unless it is overturned, that victory comes at a cost to the nation. It's going to be much harder to gain meaningful productivity rises in transport and the door is now open for big companies in other industries to copy Toll.

The ACCC appears to have effectively rubber-stamped a practice pioneered by Toll whereby the company would pay the Transport Workers Union to investigate its competitors and report the results of that investigation back to Toll.

As I pointed out in July (Appeasing unions is taking its Toll, July 16) under its current agreement with Toll, the TWU is required to investigate five agreed Toll competitors each year in 2013, 2014, 2015, 2016 and 2017. The union reports all results to Toll. We do not know the Toll rivals listed for attack but Allied Express believes it was picked out. 

The source of this information is none other than evidence given to the Trade Union Royal Commission under oath by Damian James Sloan, Toll's senior legal counsel, workplace relations and safety.

In the media industry, just imagine if News Corporation could pay the Media Alliance to investigate Fairfax (or vice versa) and report the findings back to the company paying the union to report on its rival. It is absolutely bizarre. We passed trade practices legislation that was supposed to stop it.

Good luck to Toll chief executive Brian Kruger, because he will be even more powerful in the transport industry. But while the chairman of the ACCC Rod Sims lets the Toll-TWU agreement continue, there is really not much point in Sims worrying about cartel-style activity in Australia given the precedent he is creating at Toll.

Rod Sims might say that I am wrong in saying he has given the green light for large companies to pay unions to use their power under Fair Work to investigate competitors.

But in Brisbane, the Transport Workers Union (the union Toll pays to investigate competitors) applied to represent some 76 owner-drivers in negotiations with Toll.

The ACCC authorised the TWU to represent the owner-drivers and said the agreement between Toll and the TWU was not relevant to the approval. How could it not be relevant?

I should emphasise that one of our columnists, Ken Phillips, was among those who put in a submission. He said that given the arrangement between Toll and the TWU, it was inappropriate that Toll represent the owner-drivers; it should be someone else. And as head of the Independent Contractors Association, Phillips will have his own agenda.

Toll will argue that the TWU's investigations of its competitors are all about safety. But it's not the job of the dominant force to regulate the safety activities of competitors. We have government bodies set up to do that.

If it is really about productivity, the Business Council of Australia needs to look at whether its members should engage in Toll-style practices.

I suspect the Business Council will put it in the too-hard basket and say it does not come under its charter.