Category Archives: Farm

Explainer: What the ACCC means by…

ACCClogo
After the ACCC announced today that it was taking MG and two of its former big bananas – MD, Gary Helou, and CFO, Brad Hingle – to court, Milk Maid Marian asked the competition watchdog to explain a few things. I’m very grateful to the ACCC for responding so swiftly. 

MMM: The ACCC is seeking orders against Murray Goulburn that include declarations, compliance program orders, corrective notices and costs. What do all these terms mean and can you offer any examples of what the declarations, orders and notices might look like or the form they could take?

ACCC: A declaration is an order from the Court stating that the conduct breaches the law, in this case -the Australian Consumer Law (ACL). This provides guidance to the ACCC and to businesses about what future conduct may be found in breach of the law.

Compliance programs can include requiring company directors to undergo training in the requirements of the CCA and the Australian Consumer Law.

Corrective notices can include notices printed online or in local newspapers alerting affected parties as to the Court’s findings of a breach of the law.

The Court can order that one party pay costs, or split costs, (such as the fees and other expenses a solicitor charges for providing of legal services, such as court fees.), if the court considers that party to be at fault.

The ACCC is also seeking disqualification orders against Mr Helou and Mr Hingle. A disqualification order can prevent a person from managing corporations for a period the court considers appropriate

MMM: Why is MG’s board of directors not included in the ACCC’s action?

The ACCC has taken action against former managing director Gary Helou and former chief financial officer Bradley Hingle, as it considers that they were knowingly concerned in Murray Goulburn’s conduct.

MMM: How long do these proceedings of this kind usually take?

Court proceedings can become lengthy, and matters can run in excess of 12 months. The ACCC cannot speculate how long this proceeding take to conclude.

MMM: What does the ACCC consider would be the magnitude of an appropriate pecuniary penalty for Helou and Hingle?

The ACL allows for pecuniary penalties for individuals of up to $220,000 per contravention. It is up to the court to determine the penalty to be imposed on the parties.

MMM: The ACCC is not seeking pecuniary penalties against MG but what is the likely scale of the costs it might face if the ACCC is successful?

The ACCC cannot speculate. It is determined, in part, by the length of the case.

MMM: Trade practices lawyer Michael Terceiro tweeted today that “ACCC sues Murray Goulburn – looks risky trying to dress-up a misleading & deceptive case as unconscionable conduct”. What is the difference between the two and why is the ACCC opting for unconscionable conduct rather than misleading and deceptive conduct?

It is noted that the ACCC is alleging Murray Goulburn engaged in unconscionable and misleading or deceptive conduct, and made false representations.

The ACL prohibits misleading or deceptive conduct, and making false or misleading claims.

The ACL also prohibits unconscionable conduct such as particularly harsh or oppressive behaviour that goes against conscience as judged against business and social norms and standards.

There are a number of factors a court will consider when assessing whether is unconscionable.

These include:

  • the relative bargaining strength of the parties
  • whether any conditions were imposed on the weaker party that were not reasonably necessary to protect the legitimate interests of the stronger party
  • whether the weaker party could understand the documentation used
  • the use of undue influence, pressure or unfair tactics by the stronger party
  • the requirements of applicable industry codes
  • the willingness of the stronger party to negotiate
  • the extent to which the parties acted in good faith.

This is not an exhaustive list and it should be noted that the court may also consider any other factor it thinks relevant.

MMM: Fonterra Australia will not be pursued by the ACCC because it signalled the possibility of price falls early. Did it consider the retrospective nature of the drop, the lack of notice and the levying of interest on farmers who did not opt to take loans?

The ACCC considered all issues raised during its investigation.  After assessing all of the information provided, the ACCC considers Fonterra Australia was more transparent about the risks and potential for a reduction in the farmgate milk price from quite early in the season.

Thanks again to the ACCC for this explainer.

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ACCC takes Helou, Hingle and MG to court but lets Fonterra off the hook

eleanor-roosevelt

Pic credit: The Solution News at TSNnews.com

Today, the ACCC announced that it is taking Murray Goulburn to the Federal Court for unconscionable conduct. It will also pursue MG’s former MD, Gary Helou, and CFO, Brad Hingle.

That’s a bit of a relief after Gary Helou told the Senate Inquiry in February that he had not been questioned by investigators. If there’s a villain in the whole dairy disaster we can all agree on, it is Gary Helou. I, for one, am glad he will have his day in court.

I am also relieved the ACCC has shown the wisdom of Job when dealing with MG. As the ACCC said in its statement:

“The ACCC has decided not to seek a pecuniary penalty against Murray Goulburn because, as a co-operative, any penalty imposed could directly impact on the affected farmers.”

On the other hand, many farmers will be disappointed the ACCC has chosen not to take any action against Fonterra. The watchdog explained that decision in a quote from ACCC chairman, Rod Sims:

“A major consideration for the ACCC in deciding not to take action was that Fonterra was more transparent about the risks and potential for a reduction in the farmgate milk price from quite early in the season,” Mr Sims said.

Rod Sims is right. Fonterra did say, more than once and from early on in the season, that the milk price was unsustainably high. Why, I was one of the farmers upset with Fonterra big banana, Theo Spierings, for broadcasting this via the newspapers eight months before the price collapse. That much, I do understand and, with the benefit of hindsight, Fonterra was doing the right thing.

Theo

Fonterra was in an impossible position. While, technically, Fonterra could have cut its price earlier and, therefore, less savagely, the reality was that it had little choice. It would have haemorrhaged supply to MG and, if the co-op had delivered on its promises, the Bonlac Supply Agreement would have forced Fonterra to match MG’s price – no matter how unrealistic – anyway.

What it does not excuse, however, is the way Fonterra responded once MG announced its price cut.

At first, Fonterra sat on its hands, apparently caught by surprise like the rest of us. Then announced a slashing of the milk price from $5.60 to $1.91kg MS – the equivalent to 14 or 15 cents per litre. It gave no notice – actually, it revised the price for May and June on May 5. There was no time for farmers to plan and we were all faced with a frenzy of late-night nightmarish decision making.

On top of that, the Fonterra response failed to consider the devastating effect it would have on farmers with autumn-calving herds. Fonterra moved the goalposts a week later to spread the pain more evenly across its farmer suppliers but, for those who’d been most responsive, it was too late. Cows had been culled and the decision to send milkers to market is absolutely final.

Even now, farmers who chose not to accept the low-interest loans Fonterra offered to partially fill the void are still paying a mandatory levy to fund the scheme.

The weeks of insanity in May and the pain it continues to wreak on farmers cost Fonterra Australia loyalty that took it decades to build, as Australian GM of Milk Supply, Matt Watt acknowledged in this excerpt of an email to suppliers just minutes ago:

  • “You will have seen today that the ACCC released its findings into their investigation into MG and Fonterra over last season’s step down. The ACCC advised that they have decided not to take action against Fonterra.”

  • “I know the last 12 months have been incredibly challenging for you and your families, your communities and our industry.

  • “We’ve listened to you, and we’ve learned a lot over the past year. What you’ve told us has informed the steps we’re taking to ensure a stronger dairy industry.

  • “As you know, we’re working with BSC Board on greater transparency on price and as mentioned earlier I look forward to sharing more on that at the upcoming cluster meetings. We’re also fully engaged in the Dairy Industry Code of Conduct.

  • “We understand it will take time to rebuild confidence, and this is something we are firmly committed to.”

Neither of the two big Australian processors covered themselves in glory a year ago.  At least we now have some prospect of justice, if not recompense, for all the farmers affected by the reckless behaviour of the man at MG’s helm that sent so many to the rocks.

It’s a sign – a good sign – that the dairy community will chart a better course and keep a closer watch in the years to come.

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Milk maid says thank you to her heroes: you!

cropped-family

A heartfelt thank you from our family to yours

There may have been a few villains in the dairy disaster but a year on from the day Murray Goulburn made its infamous announcement, there are many more heroes.

Millions of them.

I remember my first trip to Melbourne after the story of our plight reached the city. A business acquaintance greeted me with: “Getting tricky buying a litre of milk these days, Marian.”. Lee had been to three shops before he could find branded milk.

Three shops. For a bottle of milk.

I remember my neighbours calling in to see if I really was alright after The Project went to air while I welled up with tears beside my husband. The tears spoke of the sense of despair, shock and downright frustration that being helpless in the face of careless callousness.

But not any more.

The sense of helplessness has passed, thanks to people like Lee and those, like Waleed Aly, who made our stories heard. Ordinary people took the extraordinary step of doing something Coles and Woolies never thought they would. They showed they cared with their wallets.

And that clear, genuine care drove action.

We farmers have been gifted something precious, a once in a lifetime chance to change things for the better. Thanks to all the ordinary people making an extraordinary statement with the simple, everyday purchase of milk, we have the attention of the nation’s watchdogs and the ear of its leaders. If we are clever enough, we can make sure this never happens again.

Now that’s something worth remembering on a day we’d otherwise rather forget. Thank you.

 

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No light at the end of the tunnel: MG

MGDevondale

Okay, so here’s the thing: Milk Maid Marian readers are asking whether I have invited MG to write a guest post following on from the Light at the End of the Tunnel pieces contributed by ADF and Fonterra.

The answer is “Of course!”. I try to make Milk Maid Marian as balanced as possible, so invited ADF, MG and Fonterra each to contribute an (unedited and complete, as usual) guest blog that would give farmers some hope.

Unfortunately, after much discussion, an MG spokesperson said the co-op couldn’t offer anything at this time or say when it might be able.

I know the co-op is going through a really rough time at the moment and dearly hope the MG board and management soon do find light at the end of the tunnel.

And when they do, there’s always an open invitation for the co-op to discuss the future of Australian dairy here.

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Tired, stupid, almost dead farmer

FireRadishI was knackered. It’d been a long few days of really physical work and I’d just finished burning a paddock of dead weeds. I was tired, hot, stinky and pushing through a three-day-old crushing headache.

It was almost 8pm and I just wanted to go home. I only needed to ride the quad around the darkened paddock to make sure the fire really was out and safe to leave.

QuadLights

Squinting into the smoke, I darted west across the charred flats. And then, suddenly, a single strand of electric fence wire appeared where no wire had ever been. Until the day before, at least.

Yes, I had rolled out, strained and rammed in the posts for that very same wire just 26 hours earlier. But in my stupor, in autopilot, energy-saving mode, it didn’t exist.

I slammed on the brakes instinctively trying to lean back while hanging onto the handlebars. In slow motion, the wire lifted over the handlebars, twanging savagely against my forearms.

I was 30 or 40 cms – a fraction of a second – from being garotted.

Stunned at my own stupidity, I backed away from the wire and tried feebly to jam the steel post that I’d sent flying a couple of metres back into the ground.

It’s a salutary lesson. Once, I would’ve had contractors in to build that fence instead of wearing myself so thin. Today, the budget simply doesn’t allow for such luxuries. The ripple effect of the dairy crisis shouldn’t be underestimated.

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Light at the end of the tunnel: ADF’s Terry Richardson

If there’s one word dairy farming feels like at the moment, it’s exhausting. Sometimes – often – I wonder why we keep on slogging away. So, I asked dairy peak body, the Australian Dairy Farmers, to write a guest post titled simply “The Light at the End of the Tunnel”. It’s not an easy piece to write and I am incredibly grateful to ADF president, Terry Richardson, for taking up the challenge.

ADF president, Terry Richardso

ADF president, Terry Richardson

Last year was tough. It was tougher than tough for a lot of dairy farmers.

So, is there light at the end of the tunnel? I think as a farmer you just get used to riding a bike up and down those hills. To keep their heads above water, farmers must keep peddling their bike.

I could start talking about the global market showing a slight upward trend, or I could talk about the things that we have been working on to make sure last year never happens again.

There isn’t a quick fix and there is no silver bullet.

While we are an industry that has been under intense pressure, we are also an industry that has the know-how and resilience to overcome adversity and thrive in the long term.

ADF, together with the state dairy organisations have fought hard for farmers and continue to do so. Even though we won’t be able to solve all the issues farmers are facing, we have been working behind the scenes to relieve some of the pressures. We want to ensure that an unfair share of the risk in the value chain is not taken by the farmer and that events last year don’t ever happen again.

Our first aim is to show you that there is a tunnel. To us, this is the ongoing prosperity of dairy farmers’ and our clear intent is to ensure no dairy farmer is ever made to feel vulnerable over processor decisions. This is the reason we are working on a code of practice for contractual agreements between farmers and their processors.

Next, we need to show you that there is a light. The Effects Test is a tool regulators can use to judge whether a company is acting to unfairly reduce competition. With the potential for use in examining the business practices of the large supermarkets in Australia, and their strategies around $1 per litre milk, and $6 kg cheese.

Lastly, the Commodity Milk Price Index will be a tool farmers can use to better understand and plan for market volatility throughout the Australian dairy supply chain. This is the bike.

We need practical and viable solutions to increase transparency in the way the milk pricing system works, and to simplify milk contracts to ensure the volatility of the market is better balanced. Improving equity and transparency through the supply chain is one of the matters ADF is driving with the Australian Competition and Consumer Commission and the Federal Government.

We can’t do this alone, collaboration is the key to get us where we need to be. Our industry relies on all the elements to operate effectively. Farmers need processors and processors need customers big and small – so the solutions require all of us to work together to ensure a positive future.

While we can show farmers the tunnel, offer them a light and hand them the bike by working on the solutions for a long, sustainable future, it is still important that we continue to develop and improve these tools so farmers can keep peddling.

Farmers can help achieve this by grabbing every opportunity that comes their way, getting involved, joining a policy discussion through their state organisation and by showing the community that dairy farmers – regardless of the challenges they face are good business people, who care for their cows and work to enhance the well-being of the Australian people.

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NFU explains the British milk price system

A couple of posts earlier, Andrew Hoggard explained the Kiwi milk pricing system and now, I’m delighted to thank Siân Davies, chief dairy advisor of the NFU for this explanation of the way UK dairy farmers are paid.

As the big processors review the way Australian farmers are paid, it’s an important discussion we can’t afford to ignore. Thank you, Siân, for being so generous!

sian-davies

The Brits just hate simplicity!

Nothing’s ever simple in the dairy world is it? Explaining milk pricing in the UK in a blog is going to be tough but I’ll give it a go.

The UK dairy market is pretty unique in that half the milk produced on farm every year is processed into fresh liquid milk – we have a huge population and around 98% of them drink milk. A quarter of the milk produced is processed into cheese, mainly cheddar with the remaining quarter used for other dairy products – butter, yoghurt, powder and cream etc.

We’re also not self-sufficient in dairy products and our dairy trade deficit is abysmal – last year we exported €1.1billion worth of dairy products but imported more than €3billion. This mainly comes from the EU (especially Ireland) as cheese or milk powder.

These are just some facts to try to explain our milk pricing models which are pretty unique to us.

Over 100 UK milk buyers dominated by Arla and Muller
All dairy farmers have a milk contract to supply a milk buyer, of which there are probably over a 100 – these being a mix of co-ops, plcs and privately-owned companies.

The main ones are Arla Foods co-operative with just over 3,000 members here in the UK (of their 15,000 EU owners) and Muller UK with around 2000 suppliers. Both these buyers produce a variety of dairy products but their main focus is supplying liquid milk and branded products to UK retailers and food service.

How the milk price is set
Arla has a common EU milk price – with all their conventional milk suppliers receiving the same milk price regardless of which EU country they are in. Of late the £:€ exchange rate has meant the UK milk price has suffered and not risen as fast as its € counterpart. Arla’s pricing model is pretty simple:

Monthly sales – staff costs – reinvestment (agreed at outset by the Arla board) = milk price.

The price is announced monthly a few days before the start of the month.

Most other UK milk buyers practice buyers discretion which means they set the milk price according to where they see the market. There is no discussion or negotiation with supplying farmers. Muller has historically kept its suppliers happy by paying a little more than Arla.

Another practice commonly used by milk buyers is that of basket pricing – where processors base their farmgate milk price on an average of a basket of other milk buyers’ milk prices. This is now normally based on Muller and Arla, and moves a month after the two main buyers. It can have no resemblance to the market in which the actual milk buyer functions.

A more recent addition to the milk price portfolio is that of cost of production+. This is pretty unique to the UK and came into being when milk volumes were short and retailers wanted to guarantee a steady supply of fresh liquid milk.

A number of our most “caring” retailers started paying a milk price guaranteed to be over the cost of production for farmers who supplied them with fresh liquid milk. Just over a 1000 farmers are now on this type of model (it doesn’t fit into the Arla co-op model so Arla shares the increased price amongst all its EU members) but these farmers would also be required to jump through additional hoops, for example, on animal welfare, carbon footprinting and engagement with the retailer.

Last year, with the market crash and after the removal of quotas a number of milk buyers brought in A and B pricing, where farmers were paid a milk price (A price) for their core volume (set by the milk buyer) and then a B price for anything above that A volume.

When milk was plentiful, the B price was well below the A price and reflected spot milk price or below as milk buyers tried to encourage farmers to reduce production. It follows that as milk became short that the B price would race upwards, overtaking the A price. Our most calculating milk buyers removed the A and B pricing policy when this occurred.

UK dairy deregulation
Dairy farmers in the UK has historically no need to worry about better understanding their milk buyer or market dynamics as we had a Milk Marketing Board that collected every litre of milk produced and paid every farmer the same price.This stifled innovation and competition although many farmers wish it was still in place.

The MMB was a producer-run product marketing board established by statute in 1933 to control milk production and distribution in the United Kingdom. It functioned as buyer of last resort in the British milk market, thereby guaranteeing a minimum price for milk producers. The British milk market was deregulated in 1994 following the Agriculture Act 1993.

Many milk contracts haven’t changed much since 1994, with farmers having to exclusively sell milk to one buyer on an evergreen (everlasting) contract with long notice periods. The contracts also include an annex which is the pricing schedule laying out payments (bonuses and penalties) for % butterfat, % protein, somatic cell counts, bactoscan and more recently thermodurics.

Most dairy farmers also have to be members of our farm assurance scheme, Red Tractor, and are inspected independently once every 18 months to check compliance with the RT standards for animal welfare, environmental care and milk quality.

Price risk management
A more recent addition to the milk price stable here in the UK is fixed price, fixed term, fixed volume options. Milk buyers allow farmers to lock in a certain volume of milk at a set price to help manage price volatility. The milk buyer has normally backed up the volume on a fixed deal with a customer or sold the product forward on futures markets.

Transparency missing
One thing that is missing in the UK is price transparency within the dairy supply chain. Farmers know what price they are offered by their milk buyer and we all know what price milk is priced at on the retail shelf (too low!) but what happens in between?

Our farmer levy body provides a great deal of market intelligence on dairy including market indicators such as AMPE (actual milk price equivalent) and MCVE (milk for cheese price equivalent) and more recently a futures milk price indicator, FMPE. This information is available for anyone free of charge but we all do follow the GDT auction religiously to see what the market sentiment is.

Haves and have-nots of UK dairy
The variance in milk prices paid in the UK over the last two years has been as large as anyone can remember. At one time farmers producing milk for cheddar were receiving 14ppl whilst at the same time a farmer supplying a retailer with liquid milk was receiving 32ppl.

Prices have come closer of late as the global dairy market improved and farm inputs reduced in price but this led to a complete divide within the UK dairy farming fraternity between the “haves” and the “have-nots”, simply those on a supermarket contract and those who weren’t.

Looking forward
We accept that milk pricing will become more volatile in future, what with Trump in the US and Brexit looming for us. Our farmers are calling out for new milk pricing options that help manage risk for the whole supply chain and we are at last seeing some movement from buyers.  We believe the dairy market can work better for all the players within it – from farmer, to processor, to retailer and ultimately the consumer.

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