Viterra 2011

The ACCC consented to extending the term of Viterra's 2011 undertaking until the earlier of 30 September 2015 or such a time as it is no longer required to have an access undertaking accepted by the ACCC (for instance, upon the anticipated commencement of a mandatory code of conduct on 1 October 2014).

Further, the ACCC consented to certain variations to Viterra's 2011 undertaking which Viterra had sought to:

• reflect the changes made to the Wheat Export Marketing Act 2008 (WEMA) since the 2011 undertaking was accepted
• remove unnecessary provisions relating to the introduction of an auction system
• allow Viterra to unilaterally amend Port Loading Protocols temporarily during a force majeure event
• ensure the Port Loading Protocols and the standard terms will continue to operate effectively as stand alone documents once the 2011 undertaking has expired
• modify the Port Loading Protocols to facilitate the administration of the auction system and subsequent first in, first served system
• allow Viterra to move bookings between the Outer Harbor and Inner Harbour Port Terminals to increase the efficiency of both port terminals.

Details of Viterra’s original and amended applications, including supporting submissions are available below:

On 3 September 2013, the ACCC commenced a public consultation process in relation to Viterra’s proposed extension of and variation to its 2011 undertaking. The ACCC invited public submissions on the application, which were due by 20 September 2013.

The ACCC received the following submissions from stakeholders in response to the issues paper it released on Viterra's proposed extension and variation of its 2011 undertaking.

On 21 November 2013, the ACCC issued a draft decision proposing to consent to Viterra’s application to extend and vary its 2011 Port Terminal Services Access Undertaking.

The ACCC sought comment from interested parties in response to the draft decision by 6 December 2013. No submissions were received.

In addition to variations set out in Viterra’s application to extend and vary its 2011 Undertaking, Viterra wrote to the ACCC on 8 October 2013 proposing two further changes to its Port Terminal Services Agreement for Standard Port Terminal Services.

• Viterra proposed to vary the definition of ‘reference prices’ to remove references to its 2011 Undertaking.  Viterra also proposed to replicate, from the 2011 Undertaking, a provision allowing it to vary reference prices from time to time provided that sufficient notice is given.
• Viterra submitted that the proposed changes were intended to clarify the process that Viterra would adopt in varying its reference prices, particularly if its access undertaking expires with the commencement of a wheat export mandatory code of conduct. Viterra also noted that the reference price variation process set out in the proposed new clause 8.1(b) of the Standard Terms, was taken directly from clause 5.6(b) of Viterra’s 2011 Undertaking.

In effect, the proposed changes to the Standard Terms did not impact on the operation of the 2011 Undertaking and don't alter an access seeker’s ability to negotiate different terms.

On 30 January 2014, the ACCC issued a final decision consenting to Viterra’s application to extend and vary its 2011 Port Terminal Services Access Undertaking.

The final decision provides reasons for the ACCC’s consent to an amended application to extend and vary, submitted by Viterra on 12 December 2013. The amended application was submitted by Viterra to incorporate changes made to Viterra’s Port Loading Protocols through a separate variation process, and two further minor changes to Viterra’s Standard Terms. Other than to incorporate these changes to Viterra’s Port Loading Protocols and Standard Terms, Viterra’s amended application was on identical terms to Viterra’s original application, submitted to the ACCC on 25 July 2013.