Monday, July 6, 2009

Exclusive dealing and third line forcing (s47)

Faruque Ahmed
P.O. Box – 349, Alexandria - 2015
Mobile: 041 091 4118, Email: union_faruque@...

Mr. Graeme Samuel
Chairman ACCC
Level 7, Angel Place
Sydney NSW 2000
Ph: (02) 9230 9133
Fax: (02) 9223 1092

29 May 2009

Subject: Removal of anti-competitive laws, regulation, policies and practices under the auspices and control of the NSW Ministry of Transport.

Dear Sir

I draw your attention to the actions of the NSW Taxi Council Pty Ltd and to Cabcharge Australia Pty Ltd. I provide a number of copies of recent relevant material from those companies.

The first is a copy of an article from the NSW Taxi Council Pty Ltd's bi monthly magazine called "Meter". The April- May 2009, Pg 3, article is headed, "Safe Swiping."

The second and third copy I provide is the recent information sent out to current Cabcharge Australia Account Holders.

As you would be aware there is a direct link between the NSW Taxi Council Pty Ltd and Cabcharge Australia Pty Ltd. The former is housed in the latter's own building called "Cabcharge House", at 152 Riley St, East Sydney NSW 2010.

To the best of my knowledge the holders of significant amounts of Cabcharge shares are on the Board of Directors of the NSW Taxi Council (NSWTC) e.g. Howard Harrison the current CEO of the NSWTC.

Cabcharge owns the largest taxi Network in Australia which is Combined Communications Network (CCN) which in turn owns Taxis Combined, ABC Taxis and various other taxi networks across Australia.

I allege that in this latest attempt to have placed in NSW taxis the proposed "Safe Swiping" or "Warning Stickers" that there is an attempt being made by Cabcharge and the NSW Taxi Council in combination, to further create a majority market share and domination in the processing of both credit and debit cards, primarily to the benefit of Cabcharge Australia Pty Ltd.

This wrongful, anti competitive, pro monopoly action is currently being sought via manipulation of the NSW Crime Stoppers Department, which is attached to NSW Police, to then influence and coerce the NSW Ministry of Transport to have allowed for placement in taxis these so called "Safe Swiping" or "Warning Stickers" into all NSW taxis.

This alleged manipulation and coercing by the NSW Taxi Council Ltd, as described above is fundamentally based on sparse or non existent evidence or of any substantial supporting data in relation to alleged "skimming" of credit and debit cards by NSW taxi drivers.

In the current media frenzy being generated by the mainstream press in general, regarding the use of "skimming" on ATM machines in the main (none has been shown for taxi drivers), the NSW Taxi Council Ltd is attempting to gain a further stranglehold on the profit derived from the 10% markup imposed on those passengers who present for payment either a credit or debit card to a taxi driver for a taxi fare so the 10% profit goes back to Cabcharge Australia P/L.

As you and your department would be aware all taxis in NSW and Australia wide, have fitted for use Cabcharge Australia P/L EFTPOS units, which in addition to processing Cabcharge cards can also process all other credit cards that are approved by Cabcharge Australia P/L itself, for acceptance for payment of fares. Here I refer to Visa, Mastercard, Amex and JCB.

In addition all banks and other financial institutions that are linked up to the EFTPOS payment system also have their debit (savings account) cards accepted for payment through the Cabcharge P/L, EFTPOS linked payment terminals and it's associated software system.

There is a convoluted system in place in relation to the compulsion for all Taxi networks, Australia wide, to be approved for operation by the various state or territory based Ministry's of Transport and in turn for the almost compulsory need then, for those Taxi Networks to be affiliated with a so called industry representative body or employer group, which is also state based.

The practice then is for that state based Taxi Council Ltd to form an offshoot representative arm with a different title such as the NSW Taxi Industry Association (NSW TIA) to then be an industrial organisation that is registered for representation of that employer (bailor) group (this is the Taxi Council Ltd who claim to represent bailors and plate owners) with the Industrial Commission. These Taxi Council who claim and give all the appearance of representing bailors and plate owners, including non active plate investors, are manipulated to serve the interests of Cabcharge Australia P/L.

The Chairman and Board of Directors of the various state Taxi Councils are beholden to Cabcharge Australia Pty Ltd and Cabcharge allows them to gain or strongly influences their ability to successfully succeed in any bid to gain and hold any position on the Board of Directors of any state or Territory based Taxi Council in the first place.

Cabcharge Australia P/L and it's CEO also have direct influence over who remains as a Board member or a Director of any given state Taxi Council Ltd or any given individual taxi network.

It's influence as you would be aware is enormous.

The veiled, nefarious machinations of Cabcharge Australia P/L and it's CEO is behind all significant bodies and changes or proposed changes in the taxi industry.

Cabcharge Australia is just that, it is Australia wide and it has undue influence and the ability to give or gain approval for any aspiring Board of Directors seeking person for any state or Territory based Taxi Council.

Cabcharge Australia creates an originator, feedback, and most importantly a control mechanism by in turn firstly controlling who is allowed to get onto and to stay on with any given Taxi Council, Australia wide. This even extends to individual taxi networks.

What is deliberately left out of their equation is the right to choose by the independent business owner and operator, the bailee driver including the lessee driver, who are running their own business when they take on bailment of another business entities (the bailor's) vehicle. This then so that the bailee (including lessee) can then go about conducting that bailees (and lessee’s) own business.

That is the nature of any bailment arrangement and Cabcharge Australia P/L, and in the main it's CEO, exploits the lack of grasp of the fundamental uniqueness of bailment and by extension it's implications and chain of accountability and it's chain of obligations by the parties involved, by persons in positions of power such as Commissioners or Judges of the Industrial Relations Commission or Court or of any other taxi industry impacting, government instrumentality. This obfuscation and deliberate muddying of the waters or lack of specific clarity on the full "fallout" of the industrial (remuneration) linked decisions or for approval for operation in some instances, is very much played to advantage by Cabcharge Australia P/L and it's CEO.

Cabcharges Australia and it's CEO's strategy, is the considered assessment of the possible outcome, of any given industrial (remuneration) decision or approval to operate decision, to be slanted as much as possible in Cabcharge’s favour. This has historically been shown to be very much their forte.

Meanwhile the general taxi catching public, Australia wide, and certain sections of regulatory bodies and instrumentalities and members of the media strongly sense something is profoundly wrong with the taxi industry as a whole. That the checks and balances are simply not there. That someone is winning massively while others are extremely voiceless and exploited.

The taxi catching public goes on paying somewhat inflated amounts for a service and suspects but cannot accurately pinpoint or deconstruct why it is that bailees, lessees and even plate owners, some of who may also drive, are getting very little profit or return.

I now go back to the reality of a taxi driver who goes out operating their own business. That business is primarily plying for hire for taxi fares from passengers although at times parcels and other small goods are separately carried and the carriage of those goods is paid for.

The choice as to the means or system via which the processing for the payment of the cost involved (the fare) when payment for that fare is via a card, is entirely at the discretion and is rightfully and legally the choice of the taxi driver. All taxi drivers Australia wide, as said, are operating his or her own business.

As you would know there is an accepted practice of a 10% surcharge placed on any taxi fare that is paid for via any credit or debit card. The 10% profit is partly retained by the bailee driver (including any lessee driver) BUT only if they have available and make use of a non Cabcharge EFTPOS unit which directs the card payment to those bailee (and lessee) drivers own accounts.

At least 3 companies in Australia make these portable EFTPOS units available to drivers. GM Cabs, TaxiEpay and (Gary) Schmidt Meters with the latter 2 based in Melbourne but operating Australia wide as are all of them. I understand there is also an Alex Taxis from South Australia offering a portable EFTPOS unit to taxi drivers.

Should a driver not use one of these non Cabcharge EFTPOS portable units then they are required to use the in built Cabcharge unit, if offered a card for payment.

These proposed "Safe Swiping" or "Warning stickers" are attempting to influence the public to have the belief that only Cabcharge units will ensure any supposed "skimming" activity by the driver does not take place. In reality they are an attempt to manipulate the public to do the "policing" on behalf of Cabcharge Australia to gain a further market stronghold.

This attempt at anti competitive practices is being put forward ostensibly by the NSW Taxi Council on behalf of the protection of the NSW taxi catching public by supposed "skimming" of their card details by some unknown, vague and unsubstantiated element within the taxi industry, that are supposedly the drivers (including bailees and lessees or even active plate owning drivers).

Not surprisingly to some, this attempt at the hoodwinking of the Crime Stoppers Commission to then influence the Ministry of Transport, would if allowed to be "rolled out," only serve to greatly benefit Cabcharge Australia Pty Ltd and deny choice to drivers conducting their own business.

What is in fact happening here is that the NSW Taxi Council Ltd is trying to legitimise Cabcharges domination and market share by stealth and without any valid basis.

I supply 2 pages sent out to all Cabcharge Account Holders recently on this subject of the proposed "Safe Swiping" or "Warning Stickers".

By supplying these to your department I believe this is supportive of my assertions here. The proposed actions of the NSW Taxi Council is wrongful and should be opposed, the actions of Cabcharge Australia P/L are equally abhorrent and warrant intervention.

Please investigate and respond to me at your earliest convenience.

Yours sincerely

Faruque Ahmed

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