Allowing businesses to collaborate in response to COVID-19
Since 20 March 2020, the ACCC has granted a number of urgent interim authorisations across a range of industries allowing businesses to collaborate in response to COVID-19. A summary of the latest authorisations can be found here.
In the oil and gas space, interim authorisations have been targeted at loosening communication and coordination restrictions and allowing companies to work together to ensure the security of fuel and energy supply for Australian businesses and consumers.
The ACCC has granted the following interim authorisations impacting the oil and gas industry:
- (Oil Co-operation Authorisation) On 3 April 2020, the ACCC granted major oil refiners (BP Australia, Caltex Australia, Mobil Oil Australia and Viva Energy Australia) and their representative body, the Australian Institute of Petroleum (AIP), a conditional interim authorisation to discuss and put in place measures so fuel supplies remain available for Australian businesses and consumers during COVID-19, and after the economic shutdown ends. Measures allowed to be put in place by the Oil Co-operation Authorisation will allow fuel companies to coordinate the refining and storage capacity of fuel required to keep oil refineries operating, thereby ensuring the security of supply of fuel products to Australian businesses. However, the ACCC emphasised that the Oil Co-operation Authorisation does not grant permission to coordinate pricing agreements in relation to the supply of fuel products. In addition, the ACCC noted that participation in the discussions is not compulsory. The Oil Co-operation Authorisation is subject to the following conditions:
- the AIP must notify the ACCC of any material arrangements entered into by oil refiners and the AIP within 24 hours of implementation;
- the ACCC may request information from the AIP in relation to the proposed conduct by oil refiners and the AIP; and
- any other parties wishing to obtain the same protection must seek approval from the ACCC.
The ACCC's full authorisation decision can be found at this link.
- (Gas and Energy Co-operation Authorisation) On 3 April 2020, the ACCC granted a conditional interim authorisation to the Australian Energy Market Operator Limited (AEMO) allowing gas and electricity market participants to co-operate on measures to ensure secure and reliable energy supply and integrity of wholesale markets during COVID-19. Measures that may be co-operated on include all those deemed necessary to minimise the risk of outages and if necessary, to share resources to maintain and operate energy infrastructure and coordinate repairs and maintenance. However, parties are prohibited from entering agreements about the wholesale or retail price of energy or sharing confidential information on pricing or profits. The Gas and Energy Co-operation Authorisation is subject to the following conditions:
- AEMO must regularly notify the ACCC of any material agreements or decisions made under the authorisation;
- gas and energy participants must continue to comply with conditions of other authorisations; and
- any agreements entered into under the authorisation cannot last longer than COVID-19 necessitates.
The Gas and Energy Co-operation Authorisation was revoked and replaced by the Expanded Authorisation on 17 April 2020. The ACCC's full Gas and Energy Co-operation Authorisation decision can be found at this link.
- (Expanded Authorisation) On 17 April 2020, the scope of the Gas and Energy Co-operation Authorisation was expanded. The Expanded Authorisation allows gas and electricity market participants to share information about the operation of critical facilities, risks to their continued operation, and to engage in other coordinated conduct for the purposes of ensuring ongoing energy supplies, provided the ACCC is notified. The Expanded Authorisation is subject to the same conditions as the Gas and Energy Co-operation Authorisation discussed above. The ACCC's full Expanded Authorisation decision can be found at this link.
- (Financial Relief Authorisation) On 1 May 2020, the ACCC granted a conditional interim authorisation allowing the Australian Energy Council (AEC) and its wholesale and retail energy member businesses to hold discussions, share information and enter into arrangements for the purpose of providing financial relief and other measures to businesses and expand support under existing hardship programs for residential customers. The Financial Relief Authorisation is subject to the following conditions:
- the AEC must notify the ACCC of any new members who will engage in conduct allowed by the authorisation at least one business day prior to them doing so;
- the AEC must provide the ACCC or Australian Energy Regulator (AER) with 24 hour prior notice of any meeting where discussion of conduct allowed by the authorisation will be discussed or entered into;
- no conduct may be engaged in that is materially inconsistent with the AER's 'Statement of Expectations of Energy Businesses: Protecting consumers and the market during COVID-19';
- the AEC must regularly update the ACCC/AER with details of any discussions or conduct entered into in reliance on the authorisation; and
- any agreements entered into under the authorisation cannot last longer than COVID-19 necessitates.
The ACCC's full Financial Relief Authorisation can be found at this link.