Playing games with our lives

GAMP

GAMP: Before MG in Gippsland

With just a couple of exceptions, the processors seem to have learned just one thing from the last year of chaos: loyalty is now a luxury item.

The jumble of opening prices, incentives, secret deals and long-term contracts with short-term prices shows that, by and large, we are in an era where it’s every man, woman and child for themselves.

It wasn’t always this way. Until recently, you could not buy loyalty.

Even though there were more lucrative options, most Australian dairy farmers chose to supply the last big co-op, Murray Goulburn. For generation after generation, we knew in our hearts that only a strong co-op, which put farmers first, should set the pace for the farmgate milk price.

Since the April/May debacle when farm gate milk prices crashed to disastrous levels, farmer loyalty has become gossamer thin. The main theme from Dairy Australia’s farmer survey reported in its June Situation & Outlook was that “Trust in processors has taken a knock”. Err, yes, just a little.

“In the past 12 months, 11% of respondents changed the processor they supply and a further 17% would like to change supplier – 9% are considering it and 8% would like to change but are unable to.”
“Farms with herds greater than 700 cows were most likely to have changed processor or to be considering a change.
“In general however, most farmers tend to be loyal to their processors historically and 61% have remained with one processor for the past 10 years.
“Milk price is predictably the primary reason for changing or considering changing processor, however 21% also expressed concerns with processor management and the treatment of farmers, 12% were concerned about the ‘clawback’ and 8% lack trust in their company and feel they have not been honest.”
– p. 5, Dairy Australia Situation & Outlook, June 2017

DA’s survey was conducted in February and March – well before MG opened first, very early. Everyone was watching. For years now, MG has set the benchmark milk price, pushing it as high as it could go in the spirit of a farmer-owned co-op.

This time was different.

MG’s price of $4.70 per kg of milk solids (about 36 cents per litre) was simply far, far too low. MG’s competitors needed milk and were willing to pay not just a little more but a lot more and farmers have been scrambling for the life boats in a bid to survive a third tough year in a row.

Meanwhile, other processors have been offering “loyalty” bonuses or locking farmers into long-term supply contracts without the long-term prices to match. It all flies in the face of the honour, transparency and simplicity the processors are apparently set to pledge under the Code of Conduct.

Today, MG has performed a minor miracle, lifting its opening price from the miserable $4.70 to $5.20 before the season has even begun. This 11 per cent increase puts the MG price close to breakeven for many of its suppliers.

It’s fantastic news.

Farming families across the country will breathe a little easier tonight and, for that, I am very grateful.

But, like the “forgiveness” of the MSSP, like Fonterra’s 40 cent payment, this about-face leaves me wondering why it was necessary to inflict so much pain and hardship on farmers in the first place.

Bitterness is never a becoming attribute but, with processors pulling one stunt after another seemingly without regard for the farmers stretched to their financial, physical and mental limits, it’s getting harder and harder to maintain the faith.

Bonlac on keeping Fonterra honest

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Aubrey Pellett, deputy chairman, Bonlac Supply Company

Fonterra’s announcement on Wednesday had at least one enthusiastic endorsement. In a press release, the Bonlac Supply Company chairman, Tony Marwood, declared the announcement a “good news story”.

The Bonlac statement was significant because BSC is the organisation charged with representing the interests of farmers who supply Fonterra and ensuring that the Bonlac agreement is observed by the global processor.

The positivity of the BSC board towards an announcement that drew outrage from farmers left Milk Maid Marian wanting to know more about Bonlac’s rationale for its support.

A big thank you to BSC deputy chairman Aubrey Pellet for answering these questions on behalf of the board.

MMM: What does BSC do for farmer members?
AP: BSC undertakes a number of representative activities for Fonterra suppliers as well as the wider dairy industry, not limited to the following;
· Negotiate with Fonterra Australia, on behalf of our suppliers, on conditions of milk supply
· Develop the next generation of dairy industry leaders through the BSC Leadership Program and Nuffield scholarship funding
· Oversee the operation of BSC Fonterra Australia Supplier Forum which provides direct farmer feedback to BSC Board and Fonterra Australia
· Represent supplier’s interests with Fonterra Australia and work with Fonterra to develop initiatives to support farmers
· Actively participate in supplier meetings, field days, industry conferences, industry forums etc.
· Actively lobby to support Dairy Farmers – such as our formal submissions and representations made on the ACCC inquiry into the Australian Dairy Industry and the Senate inquiry into the Murray Darling Basin Plan.

MMM: How does the BSC consult with farmer members and how many supplier forums have been held following the May price cut?

AP: The BSC Board (the majority of who are Dairy Farmers) consults with suppliers (both as a collective Board and as individuals), and has many discussions both formal and informal held on a regular basis.

With regards to formal scheduled meetings, there are the supplier forums (chaired by BSC and usually 3 per year) and cluster meetings (chaired by Fonterra but attended by BSC Board members) where suppliers are consulted and able to voice their views.

MMM: Why are farmers who supply milk under the Bonlac Agreement not able to read the document? If it is “Commercial in Confidence”, why is that so and how can farmers be expected to be party to a document they cannot see?

AP:The Bonlac Supply Agreement is a confidential agreement that sets out the basis on which Fonterra Milk has appointed Bonlac as its agent for the purpose of acquiring and/or arranging for the collection of milk.

It is a key commercial agreement for Bonlac that governs a significant portion of commercial activities of Bonlac and the suppliers it represents. This kind of information / agreement is not ordinarily in the public domain, nor made available for public / competitor scrutiny.

MMM: The Fonterra supplier handbook says the Bonlac agreement means that suppliers can expect Fonterra to match or better MG’s price. How has that obligation been met for suppliers impacted by the 40 cent shortfall in 15/16 who have since begun to supply a different processor?

AP:

o The opportunity is there for those suppliers who have left since May 2015 to return to supply Fonterra – and they are welcome back.
o There are always significant differences between the final average milk price received by different farmers in different regions with different calving profiles. The cash (not milk price) received by farmers from MG in 2015/16 was $5.53 as noted in MG’s annual report. The final Fonterra Milk Price for the same season was $5.13.
o The Milk Price obligation under the MSAA is at a total supply level – not at an individual supplier level – and along with Fonterra, we do acknowledge that a small minority of farmers will be dissatisfied by the approach that has been taken here.
o We worked through many different scenarios in arriving at this decision – it was not practical nor possible to have an individual scenario for every supplier.
o At an overall level Fonterra has agreed to do the right thing and make up this 40c difference.
o BSC will monitor these payments, ensuring that at the end of 2017/18 a minimum of 40c has been paid out as an additional milk price to eligible suppliers

MMM: Does the Bonlac Agreement state the terms of repayment for any shortfalls?

AP: The scenarios that have played out over the last 12 months have been unprecedented in the dairy industry, so there is no formal process that must be followed in the Milk Supply Agency Agreement that governs the components of any repayment ‘shortfall’.

MMM: How will the BSC ensure that Fonterra pays a market price for milk next year (excluding the 40 cent payment)?

AP: BSC does not have a role in determining the final price that will be paid by Fonterra – that price will be determined by Fonterra Management and a large number of market and other factors. Please also see comments in question 9.

MMM: Did the BSC seek independent legal advice regarding Fonterra’s announcement?
AP: BSC has sought and referred to legal advice throughout the events of the last 12 months.

MMM: Would you please clarify whether independent legal opinion has been received on Fonterra’s most recent announcement?

AP: The response on legal advice in last 12 months includes the current announcement.

MMM: The Bonlac Agreement does not expire until 2019. Does BSC support its continuation?

AP: The continuation of the agreement will be assessed closer to that date.
It must be acknowledged that the agreement covers a large range of milk collection related topics, and much more than a benchmark to MG.

Whilst BSC does support the agreement continuing, that does not mean that BSC supports all the components of the current agreement, and BSC will actively consult and look to put forward amendments as appropriate at that time.

MMM: BSC wrote last year that a new pricing model would be announced early this year. When will farmers be informed of the changes and when will they be implemented?

AP: I believe this reference is in relation to Fonterra providing more timely and appropriate pricing indicators to suppliers and the wider market.

This process is still underway and is well progressed with Fonterra.

It must be noted that the early announcement by Fonterra of the indicative price range for next season is part of this new model of operation – with the early announcement designed to give additional time for suppliers to adjust and respond to the Milk Price being offered.

MMM NOTE OF CLARIFICATION: The final question referred to this statement below from Bonlac’s 2016 annual report, which refers to a new benchmark rather than a new pricing model.

BSCbenchmark

Fonterra answers 11 difficult questions about the BSC and that 40 cents

Email
All eyes turned to Fonterra Australia after Murray Goulburn (MG) scrapped its clawback just a couple of weeks ago. Fonterra has a legal agreement with supplier group, Bonlac, to match or better the dominant player’s price and MG’s “forgiveness” of the debt effectively raised the 15/16 payment to farmers.

It’s fair to say Fonterra’s response on Wednesday (see supplier email above) sparked outrage in many quarters and raised a host of fresh questions. I put some of those questions to Fonterra Australia’s milk supply manager, Matt Watt, and appreciate his answers below. Thank you, Matt.

MMM: Considering MG’s forgiveness of debt, what’s the 15/16 benchmark return?

MW: The benchmark price for 15/16 remains $4.80. The MSSP didn’t form part of that season’s milk price as it was a pre-payment on future year’s milk price. In other words MG was taking milk payments from future years to fund the gap of their step down. While MG has forgiven the clawback the debt now sits on MG’s balance sheet.

Unlike MG’s debt package, our support loan was optional and like a bank loan. Around 40 per cent of our suppliers took out the loan, and there was significant variation in the amount borrowed among the 40 per cent. To only forgive the loan would be inequitable for our total supply base.

MMM: What role did the Bonlac agreement play in Fonterra’s announcement of an extra 40 cents/kgMS?
MW: The spirit of the agreement played a role. However, the actual benchmark milk price was $4.80 and we delivered above that at $5.13.

MMM: Why are payments being made next season rather than now?
MW: Current suppliers have the option to take the 40c payment as an advance this season.  Nevertheless, the actual payments are calculated using next season’s production to ensure suppliers can get the full advantage of this additional payment and are not limited it to this season’s production (which may have been affected by the 15/16 price reduction).

MMM: Doesn’t the Bonlac agreement mean that suppliers can expect Fonterra to match or better MG’s price? Why has Fonterra not met that obligation for all suppliers impacted by the 40 cent shortfall in 15/16 and how many affected farmers are being excluded?

MW: The Bonlac Agreement only relates to the benchmark price and, as explained earlier, the MSSP payment does not relate to the benchmark price. In the 2015/2016 season, Fonterra’s final farmgate milk price was $5.13 vs MG’s final farmgate milk price of $4.80. Also, this current season Fonterra is paying $5.20 v MG’s $4.95.

Although not legally obliged, we are making the additional 40c payment to our suppliers as it’s the right thing to do.

All Fonterra farmers affected by the 15/16 price drop are being offered the opportunity to receive this additional payment, including existing, retired and returning farmers. We’re in the process of contacting all the farmers that have left us.

MMM: Under the proposed voluntary “Code of Conduct “, the 40 cents/kgMS payment that is designed to compensate farmers for the 15/16 season shortfall could be considered a breach. Will Fonterra sign and observe the terms of the Code?

MW: I don’t want to comment on the code implications of our announcement as it is in draft.  However, in our view, there would be no breach as this payment relates to the 17/18 season, not the 15/16 season.

MMM: Why will farmers who were not suppliers during 15/16 receive the 40 cent payment?
MW: Our additional payment is on next season milk. Our first priority is existing and returning farmers. With improved farm margins on the back of this announcement, we are hopeful that the vast majority of our milk needs will be covered by growth from our existing suppliers and returning farmers. Once we understand our milk for next year, we will then consider new supply where it will add value to our whole milk pool and contribute to our ability to pay a better milk price.

MMM: If eligible farmers apply for the “advance”, will they be free to spend that money as they see fit? If not, why not?
MW: Suppliers who do not have a support loan are free to spend the money as they see fit. Suppliers can manage their cashflow by electing to take the additional payment as a monthly payment.

MMM: Under the Bonlac agreement, how soon must Fonterra make up any shortfall and who is eligible?
MW: Although not legally obliged, we are making this additional payment as we think it’s the right thing to do and we have worked with BSC in relation to this proposal. We’re obliged to meet the price at the end of each season, and have done so since the agreement has been in place. For five of the last seven seasons, we’ve paid a farmgate milk price exceeding MG’s.

MMM: Will Fonterra commit to matching the market price in 17/18?
MW: Fonterra will be market competitive in 2017/18 – our asset footprint, product mix and the current global market means we can be confident of our ability to be market competitive.

MMM: Why is the Bonlac agreement not open to scrutiny by farmers who supply Fonterra under its terms?
MW: It is a commercial in confidence agreement; however a general description of the BSC Agreement is set out in our Milk Supply Handbook.

MMM: Apart from monetary incentives, what will Fonterra do to rebuild trust and confidence – not just for its suppliers but the wider Australian dairy industry?

MW: We are absolutely committed to rebuild trust and confidence. This starts with providing clear and timely price signals, as we did in our announcement yesterday. We are working on a number of other initiatives in that respect. On top of that, we will work with our farmers and industry on the finalisation of the code, on supporting farmers and the communities around them through our grass roots program and on innovation in helping to leverage technology to enable more informed and quick decisions on farm.

Light at the end of the tunnel: Fonterra

Well, as you saw in the previous post, I’m looking for light at the end of the tunnel (other than an oncoming train!) for Australian dairy farmers like me. In that post, ADF’s Terry Richardson took up the offer to present a vision. Today, Fonterra Australia’s new(ish) managing director, René Dedoncker, presents his view. My brief was pretty open: give farmers a reason for optimism without going into all the intricacies of Fonterra’s strategic direction.

I’m very grateful to René for sending Milk Maid Marian not just the written response below but a video too. Both are worth a look because they’re a bit different.

There’s no question that there have been challenges in recent seasons. What happened last season was a reminder that we operate as part of a global market – we can reap the rewards, but it also means we share in the risk. We as companies have a responsibility to tell it like it is, so that our farmers are prepared – positioned for prosperity when conditions are good and able to weather the storm when they aren’t.

However despite the challenges there are still plenty of opportunities for Australian dairy – it’s about knowing how to capitalise on those opportunities. Today, around 406 billion litres of dairy are consumed globally every year. By 2020 it will be 465 billion litres. That’s a 59 billion litre difference – around seven times the size of Australia’s current milk pool.

We know that countries that don’t have enough milk will look to the countries that have a surplus. Australia is one of those countries. But simply selling our surplus supply in the global marketplace will only ever achieve commodity returns. It will not be enough to win back confidence on the farm.

We need to be providers of premium dairy products that are aligned with specific consumer needs and life stages, and we have to make sure we produce and deliver those products as efficiently as possible.

Two years ago Fonterra embarked on a mission to change the way we operate to enable us to better capture that demand. Overseas consumers want Australian cheese. We have a reputation for quality and excellence. Across Asia demand for cheese is growing. Mozzarella demand in China is growing at around 30 per cent each year.

In China, and across Asia, pizza is a social food – they eat it with friends and with their hands rather than a knife and fork. That’s why it’s important that as a dairy company we create a cheese that enhances that social experience.

Understanding what our customers want is crucial to our long term success as an industry. The reason there is such high demand for Fonterra’s cheese is because we’ve been immersed in the Chinese market for 25 years.

We know what Chinese consumers want. For example, we know how they eat their pizza, and how they want it to taste. Chinese consumers want their food to look as good as it tastes – they want that slightly brown crust on melted mozzarella, they want those stretchy cheese strings as they pick up a slice. Now, Fonterra cheese tops around half of the pizzas in China.

As companies, we need to leverage Australia’s reputation for high-quality dairy to make the most of the opportunities before us. The way we do that at Fonterra is through innovation – innovation in farming, in manufacturing, and in product development.

It’s why we’re investing in modern and efficient manufacturing; using technology to make dairy foods that tastes and performs the way our customers want it to. We have the technical know-how to deliver what they want – products developed with the end user in mind.

When it comes to nutritionals, the fundamentals in China remain incredibly strong, despite recent dips in demand. Here are just a few figures to consider:

  • The Chinese economy has been growing for 26 consecutive years, with economic growth still relatively strong at 6.8 per cent per year.
  • Over 54 per cent of Chinese people live in cities; by 2030 it’s expected that over 1 billion people will live in Chinese cities.
  • In 2000, just four per cent of Chinese families were considered middle class. By 2020, 76 per cent will be deemed middle class
  • China’s birth rate is climbing after the relaxation of the one-child policy – in a country with only four weeks of maternity leave many Chinese mums rely on infant formula to feed their babies after they return to work.
  • The next 12 months will be tough, as authorities seek to get greater control through regulation over the supply chain. However, the reputation of Australian dairy and the quality associated with that in China is invaluable.

We take a base commodity product and leverage everything that we have – high quality farm practices, best in class manufacturing and a point of difference on country of source, and make it into a higher-value product that is highly-desired in China.

That’s why we are continuing to back and develop the nutritional partnerships that we have so that when we get to more stable settings in China, we can take the opportunity to flourish.

There is huge potential for dairy looking ahead – not just in China, or Asia, but across the developing world. If we as processors work smarter, developing products that meet the needs of our customers and fulfilling that demand, our entire industry will benefit through greater investment, more jobs, and most importantly, a higher farmgate milk price.

Fonterra, farmers and that fat profit

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Fonterra rocked its Australian farmers last May with a price drop following Murray Goulburn’s own shock price announcement. I think it was fair to say nobody was surprised there was a drop – Fonterra had been signalling one for months – but the savagery of its execution left many farmers aghast and distraught.

Salt was added to the wound three weeks later when Fonterra chief executive Theo Spierings reportedly said:

“What we are doing is drive (sic) every cent of money which we can out of Australia back to New Zealand shareholders in this extremely low milk price environment,” he said.

“That is what we are doing everyday. And Australian business this year will be at a plus.”

Yesterday, the wound was opened afresh with Fonterra’s annual results headlined by a profit of $834 million after tax, including a healthy profit from the Australian division. With all this in mind, Milk Maid Marian asked Fonterra’s GM Australian Milk Supply, Matt Watt, some rather blunt questions. To his enormous credit, Matt had the following answers for us in less than 24 hours.

MMM: Fonterra Australia is very good at assessing farmer sentiment with its regular forums and Mood Meter surveys. How did the pricing changes announced in May affect the sentiment of farmers supplying Fonterra Australia?

MW: On the back of the shock and challenge that the price revision in May had to our farmers, we have seen a significant drop in farmer sentiment measures – that’s absolutely reflective of the discussions I’ve had over the phone and in person with our farmers and as has been fed back via our field team, BSC board and supplier forum.

MMM: How has sentiment changed since?
MW: Since opening price, we have seen a slight increase in sentiment. Importantly, the aspect that does rate positively is our field team interaction and support – we are proud of the work that the team does and, despite the surrounding circumstances, they continue to find ways to help our farmers through this period.

MMM: How much money did Fonterra Australia save by slashing the milk price in May and June?
MW: The milk price revision in May reduced our losses by around $40M which, on its own, enabled the Australian Ingredients business to get to around a break even position.

MMM: Given the reshaping of the Australian business was already well underway, why was it considered necessary to make the radical price cut?
MW: There has been significant effort and investment in the turnaround – we’ve divested loss-making businesses and non-core assets, such as our yoghurt and dairy desserts business, our Bega shares and our stake in Dairy Technical Services.

We reduced our working capital and our headcount, and undertook a program to drive efficiency throughout our business. However, the simple truth is, we were paying a milk price that was not being returned by the market, and that was impacting our profitability.

Our results today show improvement for the Australian business, which has contributed to the strong result for the Co-op, however, our turnaround is not complete and we need to continue to invest – our new, more efficient warehouse investment and further expansion of cheese capacity at Wynyard are examples of investments that have been made recently. Without a profitable business we compromise our ability to invest, risk devaluing the business, and risk our ability to provide sustainable returns right back to the farm gate.

MMM: What, if anything, do you regret about the decisions made in May?
MW: Whilst I can’t personally feel the impact on every single farm and the business and family circumstances, I am acutely aware of the massive impact that this decision had. In hindsight I often reflect as to how we could have more overtly communicated the disconnect between the Australian farm gate price and returns available in the market.

Having said that, the attempts that we did make about Australia not being immune to global challenges and that the milk price did not reflect what was being earned in the market had a discernible, negative impact on our supplier sentiment. We were accused of talking down the market.

MMM: How does Fonterra justify such harsh cuts while making a profit?
MW: While the milk price revision was regrettable, it is important that both our farmers and Fonterra have a model that ensures sustainable profitability.

The reality is that Australian milk price last year was not reflective of the global dairy commodity prices and around the world, all dairy farmers have experienced low farmgatge milk price. Our business is owned by farmers, and they have $1 billion of equity invested here. Last year these farmers received $3.90 per kgMS (NZD) in milk price plus a 40c per kgMS dividend on the back of the profit result. This takes them to $4.30 per kgMS (NZD) vs a final farm gate milk price of $5.13 (AUD) here in Australia.

MMM: Where have the 200 million extra litres come from?
MW: The new milk has largely come from MG farmers moving to supply Fonterra.

MMM: The presentation also says Fonterra Au’s outlook is to continue efforts to fill Darnum and notes that Stanhope will be online in 2017. How many more litres will be needed?
MW: The additional milk that we have brought on goes part way to meeting these needs. However, we continue to expect to see market opportunities continue to emerge, meaning that we will want to continue to grow volume, particularly in Northern Victoria.

MMM: The presentation says Fonterra Australia has gone from “Disconnect between milk price and reality” to “Market connected milk price”, yet Fonterra Australia is still bound by the Bonlac Supply Agreement to match or better the price of Australia’s largest processor. What are Fonterra plans in respect to that agreement?
MW: Our opening price and forecast close of $5.00 per kgMS reflects market conditions, but also is well above MG, the benchmark milk price. We remain committed to meeting our obligations under the BSC agreement, which is why, in 8 out of the last 10 years, we have paid a higher price than the BSC minimum commitment.

Thank you very much to Matt Watt, Fonterra’s GM Australian Milk Supply, for answering Milk Maid Marian’s questions.

Which dairy farmers will survive?

Damocles

The Sword of Damocles. Pic credit: Moritz Aust

I was digging a post hole today when my phone binged a message in my pocket. And binged again and again and again and again.

I paused to check the messages, still with the post hole digger under my shoulder and stared in shock at the Murray Goulburn announcement.

As the biggest milk processor, MG tends to set the benchmark price and, in the new financial year, it will be $4.31 per kilogram of milk solids or about 33 cents per litre. After you take off the compulsory fees the processor charges for milk collection, it’s around 30 cents. Even less again for the many Gippsland farmers whose cows calve in Spring in line with Mother Nature.

It costs a farmer like me about:

  • 40 cents to produce a litre of milk when the season is good and nothing goes bust and the bank is happy with interest-only; or
  • 42 cents to make milk and maintain the farm; or
  • 45 cents to breathe and grow.

On top of the drought we’ve just endured, this fresh set of bad news will finish many farmers off. Not just the inefficient producers, either. Far from it.

Those coasting along with little debt will emerge at the end of the year with the fewest scars. In fact, it will be the youngest, most ambitious farmers who heeded the calls for growth from Murray Goulburn, Fonterra and the banks just 18 months earlier and invested accordingly who are the most vulnerable.

We stand to lose the innovators, the future leaders of our industry. They are also those who were in line to buy the properties of retiring farmers.

I am not a Murray Goulburn supplier but the opening price announcement left me reeling. The phone rang. In a daze I answered it but found I simply could not speak.

Words fail me and with Fonterra yet to announce the price it will pay us for our own milk, the sword of Damocles hangs low. Fonterra’s behaviour over the last few weeks has been inconceivable. Will it be able to rebuild any trust tomorrow?

Who wants to sue who and who will pay?

DevondaleTwirl

One of the first things farmers asked about the Murray Goulburn and Fonterra announcements was: “Can they really do this? Is it legal?”.

The lawyers have duly arrived.

I know of three firms circling Murray Goulburn right now. While Slater & Gordon was the first to announce it was opening an investigation into a class action against MG, it has not yet confirmed whether it will proceed.

Last week, a so-called “maverick” lawyer, Mark Elliott, reportedly filed a class action against MG on behalf of unit holders who had bought shares in the listed part of MG.

At the same time, another lawyer, David Burstyner of Adley Burstyner working together with Harwood Andrews, is building a list of farmers affected by the sudden milk price collapse who might be interested in one or more of the three legal strategies:

  • a “group claim” against a range of processors to recover financial loss;
  • steps to change and take back control of MG management, and;
  • an urgent court order stopping the claw back.

The big question on farmers’ lips is: if MG gets sued, won’t farmers ultimately pay the price?

The stakes are high because MG farmers face a double whammy:

  1. Now more than ever, farmers are acutely aware that when processors don’t do well, the answer is to slash the price paid to farmers.
  2. Every farmer who supplies milk to MG must own MG shares, so its falling share price is robbing many retirement nest eggs. Some are even facing margin calls on loans they took out to buy more shares.

The targets
The Elliott class action is targeting the MG unit trust and its directors. The good news is that the trust and directors should already have insurance that deals with such a claim.

There’s likely, however, to be an excess they will have to pay, which the lawyers call “deductibles”, which means the insured party has to cover part of the loss out of its own resources as “self insurance”.

On top of that, director’s insurance is no silver bullet. This type of insurance is complex and it’s quite possible that out of court settlements won’t be covered.

The proposed action from David Burstyner could target any of the processors who stepped down: MG, Fonterra, Lion and NDP. Mr Burstyner expects to know in the next few weeks. If launched, class actions usually play out over several years, so buckle yourselves in.

Will it help farmers?
Because there’s likely to be plenty of coverage of the Elliott class action for unit holders, I’m concentrating on the Adley Burstyner proposal for farmers and its potential impact on MG, the hybrid co-op.

Speaking with Milk Maid Marian on the weekend, Mr Burstyner said his firm is investigating an injunction to halt the milk price drops.

“An injunction is difficult to secure but the situation is urgent,” he said. “We are prepared to try if it is achievable, but it depends on what we learn from farmers”.

He also plans a “group claim” against processor(s) funded by a litigation funder, which roughly works on what some people call a no win no fee arrangement (see more at http://www.adleyburstyner.com.au/group-claim-faq). This arrangement minimises the risk to participating farmers but, as a guide, around 30% of the proceeds after costs is likely to go to funders. Mr Burstyner said the participation of thousands of farmers is necessary but that it’s possible because more than 3000 supply MG and Fonterra alone.

At the same time, Mr Burstyner said he hopes there will be no need for “all-out war” and that a class action could be avoided with the processors reaching a settlement with farmers that could also improve the way milk prices are set in future.

MG, however, is not a normal company. The fundamental ways it interacts with farmers must be put to co-op members and voted on rather than hastily negotiated on the court house steps.

But what if “all-out war” is the only option? Mr Burstyner acknowledged the possibility of short-term pain for the processor (which may carry through to its supplier shareholders) but the long-term benefit would be a “clean up” of the industry.

Asked why farmer shareholders could not simply reshape their co-operative by voting on special resolutions rather than litigation, Mr Burstyner strongly agreed that strategies along those lines could be very useful, saying, “Although MG is no longer the cooperative it was prior to July 2015, we would like to assist farmers with the solutions which could be possible in the newly formed corporatised structure, using farmers’ significant rights as shareholders which we think could really improve their position.”.

In notes he offered to Milk Maid Marian, Mr Burstyner clarified his point:

o    Murray Goulburn Co-operative Co Limited ACN 004 277 089 is an unlisted public company. It is controlled by its shareholders who for present purposes are the farmers. MG is no longer the same cooperative structure it was before July 2015.

o    Shareholders with more than 5% of votes can call a meeting or ask the company to call one.

o    They can sack the board and appoint alternatives by ordinary resolution.

o    There is a 2-month notice requirement for certain resolutions, for example, sacking board members.

o    The Company (under new management) may even be able to bring a claim against former Directors for not satisfying their director’s duties.

Mr Burstyner is keen to hear from farmers who would like to be kept updated on these three types of potential legal action (in the short term an injunction or challenging management, or the long term solution of a class action to recover financial loss and bring about systemic changes).

You can register your interest at http://www.adleyburstyner.com.au/farmers-farm-gate-milk-price-action.

Mr Burstyner stressed that he has no interest in any legal strategies if farmers don’t want them. Without interest from significant numbers of farmers, Adley Burstyner and Harwood Andrews will close their file.

Important: this post is general commentary only, please seek legal advice before considering any action.