Australian Competition and Consumer Commission chair Rod Sims has defended a letter sent to the author of an opinion piece that the ACCC believed raised price fixing concerns, amid an accusation the regulator engaged in “extremely dangerous” disruption to public discourse.
The competition watchdog endured a tough and at stages bipartisan questioning in a late-night Senate Estimates hearing on Tuesday, as Labor Senator Tony Sheldon probed ACCC correspondence with an owner/operator truck driver, who lamented small pay packets in a trade magazine earlier this year, calling for pay solidarity among drivers.
While the author had sought to encourage truck drivers not to accept unprofitable rates amid the COVID-19 pandemic, the ACCC believed this could amount to an attempt at price fixing and encouraged the author —known throughout the industry as Frank Black— to “reflect on his conduct” by bringing a range of penalties for cartel conduct to his attention.
Sheldon accused the regulator of threatening the truck driver with up to 10-years jail for raising the issue of lackluster remuneration, which research has found contributes to overwork, injury and death across the industry.
“The ACCC does exceptionally important work. This is not important work to have done to Mr Black and going after people that have written opinion pieces is extremely dangerous in democratic society,” Sheldon said.
Sims, who at one point conceded the ACCC could have handled the matter differently, defended the letter, saying the regulator sought to deter the author.
“What we’re trying to do Senator [Sheldon] is let them know that this is a breach of the law,” Sims said. “… We don’t really want to take action here, we’re saying ‘stop doing this’.”
The letter has been the subject of conflict between the Transport Workers Union –which Sheldon previously led– and the Australian Trucking Association (ATA) in recent months.
The ACCC didn’t disclose where it first heard about the owner/driver magazine article, confirming it did not maintain a subscription to the publication.
Asked whether the ACCC had undertaken any correspondence with the ATA about the article, an official first suggested there had been talks, before deferring to a more senior colleague who clarified the ACCC was not in a position to disclose sources of operational intelligence.
In the article itself, Black urged drivers not to accept lowered rates anywhere in the industry.
“We all feel the calling of our personal financial needs but undercutting each other to win work will only do harm to us all,” he wrote.
The comments mirror a call to action Sheldon himself made in the same magazine back in 2016, prompting the Senator to ask Sims whether he should have been sent a letter.
“Would you have threatened me with a 10-year jail term?” Sheldon asked.
“We would have judged that was a policy call, not in trade or commerce,” Sims said. “The reality is you’re really breaching a law.”
“The problems you’re talking about, which I have enormous sympathy for … need another response, they can’t involve breaking the law,” Sims said.
Basically, the ACCC argued because Black is technically a competitor in the industry, his call to action amounted to conduct that could have breached price fixing laws.
But Liberal Senator Paul Scar said he was concerned about the proportionality of the response by the regulator.
Referring to a 2014 memorandum of understanding about criminal cartel conduct with the Commonwealth Director of Public Prosecutions, Scar suggested the article did not meet the bar requiring covert, serious and large scale conduct.
“None of it [the conditions for criminal cartel conduct] fell into the ambit of a single owner/operator writing an opinion piece, to be frank,” Scar said.
“I can see where you’re going Senator, and I think you’ve got a fair point,” Sims responded.