[2023] IASC 109

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Decisions: [2023] IASC 109
Renewal of: [2017] IASC 117
The Route: Vanuatu
The Applicant: Virgin Australia International Airlines Pty Ltd
(Virgin Australia)
ABN 63 125 580 823
Public Register: IASC/APP/202312

The Commission makes a fresh determination allocating to Virgin Australia International Airlines Pty Limited 720 seats of capacity per week in each direction on the Vanuatu route, subject to certain conditions. The determination permits Virgin Australia International Airlines Pty Limited to provide code share services with Singapore Airlines and Qatar Airways. The determination is valid for five years from 10 July 2023.

1 The application for renewal

1.1    On 10 August 2017, the International Air Services Commission (the Commission) issued Renewal Determination [2017] IASC 117 (the Determination) renewing the allocation of 720 seats of capacity per week in each direction on the Vanuatu route in favour of Virgin Australia Airlines (SE Asia) Pty Ltd, including permission for Virgin Australia Airlines (SE Asia) Pty Ltd to provide code share services with Singapore Airlines.

1.2    The Determination was subsequently varied by Decision [2018] IASC 229 on 21 September 2018 and Decision [2018] IASC 246 on 30 November 2018, which transferred the capacity entitlements to Virgin Australia International Airlines Pty Limited (Virgin Australia) and provided permission for the capacity to be used by Virgin Australia or its wholly-owned subsidiary, Tiger International Number1 Pty Ltd.

1.3    On 21 January 2020, the Determination was further varied by Decision [2020] IASC 201 to permit Virgin Australia to use the capacity to provide code share services with Etihad Airways.

1.4    The Determination was further varied by Decision [2023] IASC 202 on 24 March 2023, to permit Virgin Australia to provide code share services with Qatar Airways, and to remove conditions permitting the provision of code share services with Etihad Airways and the use of capacity by Tiger International Number1.  

1.5    Section 17 of the International Air Services Commission Act 1992 (the Act) requires the Commission to start its consideration of the renewal of a determination at least 12 months before the expiry of the original determination. The Determination is due to expire on 9 July 2023. In view of this, the Commission sent, on 25 July 2022, a letter to Virgin Australia inviting it to apply for renewal if it wished to renew the Determination.

1.6    On 15 February 2023, Virgin Australia applied to the Commission for a renewal of the Determination for a further five-year period from 10 July 2023 and requested the retention of existing conditions that permit Virgin Australia to use the capacity to offer codeshare services with Singapore Airlines and Qatar Airways.

1.7    In accordance with sections 12 and 17 of the Act, the Commission published, on 16 February 2023, a notice on its website and subsequently sent a notification by email to stakeholders inviting other applications for capacity on the route. No other applications were received.

1.8    All non-confidential material supplied by the applicant is available on the Commission’s website (www.iasc.gov.au).

2 Relevant provisions of the air services arrangements

2.1    Paragraph 7(2)(aa) of the Act provides that the Commission must not allocate available capacity contrary to any restrictions on capacity contained in a bilateral arrangement(s). Any variation made to an existing allocation of capacity should also not be contrary to any restrictions on capacity contained in a bilateral arrangement(s).

2.2    Under the Australia-Vanuatu air services arrangements, Australian designated carriers may operate up to 4,000 seats per week of passenger capacity in each direction between Vanuatu and the following points in Australia: Sydney, Melbourne (including Avalon), Brisbane and/or Perth. According to the Register of Available Capacity, there are 3,100 seats available for allocation to and from any of the four major cities (Sydney, Melbourne, Brisbane and Perth). 

2.3    The Australia-Vanuatu air services arrangements allow Australian designated airlines, over all or any part of the route, to enter into code share, blocked space or other cooperative marketing arrangements, as the marketing and/or operating airline, with another designated airline(s) of Australia, with the designated airline(s) of Vanuatu, and/or the designated airline(s) of third parties.

3 Commission's consideration

3.1    Section 8 of the Act provides that the Commission may, at any time while a determination is in force, make a fresh determination allocating the capacity to which the original determination relates. Subsection 8(2) provides in part that the fresh determination must make the same allocation of capacity as the original determination unless the Commission is satisfied that the allocation is no longer of benefit to the public. In assessing the benefit to the public of an allocation of capacity, the Commission must apply the criteria set out for that purpose in the policy statement made by the Minister under section 11 of the Act. 

3.2    Pursuant to section 11 of the Act, the Minister issued the International Air Services Commission Policy Statement 2018 (the Policy Statement), which came into effect on 28 March 2018.

3.3    Section 14 of the Policy Statement applies where the Commission is proposing to make a fresh determination under section 8 of the Act, and is considering whether the allocation of capacity in the original determination is no longer of benefit to the public for the purpose of section 8(2)(a)(i) of the Act. Section 14(2) of the Policy Statement provides that, without limiting the matters to which the Commission may have regard, an allocation is generally no longer of benefit to the public if:

  • the carrier has failed to service the route effectively (s 14(2)(a)); and
  • there are other applications for some or all of the capacity (s 14(2)(b)); and
  • the Commission is satisfied that a different allocation of capacity would be of greater benefit to the public, having regard to the criteria set out in sections 8 and 9 of the Policy Statement (s 14(2)(c)).


3.4    The Commission notes that, under subsection 14(2) of the Policy Statement, an allocation will generally no longer be of benefit to the public where all of the above conditions are satisfied. 

3.5    There are no other applications for some or all of the capacity to which the determination in question relates, and therefore the condition in section 14(2)(b) of the Policy Statement is not satisfied. The Commission therefore finds that the proposed allocation does not fall within the class of allocations that are generally no longer of benefit to the public contemplated by subsection 14(2) of the Policy Statement.

3.6    However, subsection 14(2) of the Policy Statement operates ‘without limiting the matters to which the Commission may have regard’. In view of the circumstances pertaining to the COVID-19 pandemic, the Commission has proceeded to consider whether the allocation is no longer of benefit to the public in all the circumstances.

3.7    On 11 March 2020, the World Health Organization declared the outbreak of COVID-19 a pandemic. In response, the Australian Government introduced a range of health, financial and other measures to prevent and minimise the transmission of COVID-19.

3.8    In this context, on 24 March 2020 the Prime Minister announced that the Australian Government was introducing a ‘do not travel’ ban on Australians travelling overseas under the Biosecurity Act 2015. On 27 October 2021, the Government announced it would lift the international travel ban for certain categories of travellers from 1 November 2021, subject to certain conditions. On 7 February 2022, the Prime Minister announced that Australian international borders would re-open from 21 February 2022.

3.9    With the imposition of travel restrictions in March 2020, Virgin Australia suspended its scheduled international flights in 2020-21. In assessing the current Virgin Australia application for the renewal of its capacity allocation of 720 seats per week in each direction of passenger capacity on the Vanuatu route, the Commission considered whether Virgin Australia has failed to service the route effectively.

3.10    Until travel restrictions linked to the COVID-19 pandemic were imposed by the Australian Government in March 2020, Virgin Australia operated regular services between points in Australia and Vanuatu. Prior to March 2020, there was no information to suggest that Virgin Australia has failed to service the Australia-Vanuatu route effectively. 

3.11    The Commission notes that on 14 June 2022, Virgin Australia announced its plans to re-commence up to five weekly services between Australia and Vanuatu from 10 March 2023. The Commission further notes that on 4 March 2023, the Government of Vanuatu declared a state of emergency in response to the impacts of cyclones causing widespread damage. Virgin Australia has confirmed with the Commission that due to the state of emergency, the airline had to re-commenced these services from 31 March 2023 (shortly after the start of the Northern Summer 2023 IATA scheduling period). 

3.12    The Commission considers that the temporary suspension of Virgin Australia’s services between Australia and Vanuatu in 2020-2022 was directly in response to travel restrictions associated with the COVID-19 pandemic. The Commission also considers that Virgin Australia’s delay in re-commencing its services between Australia and Vanuatu as reasonable in light of Vanuatu’s state of emergency. The Commission therefore finds that the temporary suspension of Virgin Australia’s services in these circumstances does not mean that Virgin Australia has failed to service the route effectively. 

3.13    The Commission has also considered the ‘reasonable capability criterion’ in section 8 of the Policy Statement, i.e. the extent to which all Australian carriers that are, or would be, permitted to use the capacity allocated under a determination are reasonably capable of: (a) obtaining any licences, permits or other approvals required to operate on and service the route to which the determination relates; and (b) using the capacity allocated under the determination.

3.14    The Commission notes that Virgin Australia is an established carrier which operates scheduled international services on various routes, and therefore finds that it is reasonably capable of obtaining the necessary regulatory approvals and of using the capacity allocated under the Determination. 

3.15    There is no other information before the Commission that it considers to be relevant or material to its assessment of Virgin Australia’s application. Based on its findings above, the Commission is not satisfied that the allocation of capacity in the original determination is no longer of benefit to the public for the purposes of section 8(2)(a)(i) of the Act. Therefore, the Commission is required to make the same allocation of capacity as the original determination (see section 8(2)(a) of the Act).

3.16    The Commission will continue to monitor the utilisation of capacity by Virgin Australia on this route.

3.17    Virgin Australia also requested to retain existing conditions that provide permission for Virgin Australia to utilise the capacity to provide code share services with Singapore Airlines and Qatar Airways. 

3.18    Under section 19 of the Act, the Commission “must include the same terms and conditions as the original determination to which it relates” (s 19(1)(c)), but “may make such changes (if any) to the terms and conditions included in the original determination (including adding or deleting terms and conditions) as it is satisfied are warranted because of changes in circumstances since the original determination was made” (subsection 19(3)). Pursuant to section 19 of the Act, the Commission has decided to continue permitting the use of the capacity for code sharing with the airlines listed in item 4 below subject to conditions as stated. 

3.19    Nothing in this decision should be taken as indicating either approval or disapproval by the Australian Competition and Consumer Commission (ACCC). This decision is made without prejudicing, in any way, possible future consideration of code share operations by the ACCC.

4 Determination allocating capacity on the Vanuatu route to Virgin Australia International Airlines Pty Ltd ([2023] IASC 109)

4.1    In accordance with section 8 of the Act, the Commission makes a determination in favour of Virgin Australia International Airlines Pty Ltd, allocating 720 seats per week in each direction on the Vanuatu route in accordance with the Australia - Vanuatu air services arrangements.

4.2    The determination is valid for five years from 10 July 2023.

4.3    The determination is subject to the following conditions:

a)    Virgin Australia International Airlines Pty Ltd is required to fully utilise the capacity from the date the determination comes into effect or from such other date approved by the Commission.

b)    Only Virgin Australia International Airlines Pty Ltd is permitted to utilise the capacity.

c)    Virgin Australia International Airlines Pty Ltd is not permitted to utilise the capacity to provide code share or joint services with another Australian carrier or any other carrier unless approved by the Commission. 

d)    As approved by the Commission, the capacity may be used by Virgin Australia International Airlines Pty Ltd to provide code share services with Singapore Airlines in accordance with the code share agreement between the airlines made effective on 14 April 2022, as amended.

e)    The capacity may be utilised by Virgin Australia International Airlines Pty Ltd to provide code share services with Qatar Airways in accordance with the code share agreement between the airlines made effective effect on 21 June 2022, as amended.

f)    Virgin Australia International Airlines Pty Ltd must apply to the Commission for approval of the use of the capacity if there are variations to the code share arrangement(s) between Virgin Australia International Airlines Pty Ltd and Singapore Airlines or Qatar Airways, which would change the relevant commercial aspects of the code share arrangement(s) from a free sale code share arrangement to a blocked space, or vice versa, or if Virgin Australia International Airlines Pty Ltd proposes to add third country routes on which the airlines will code share where Australian capacity will be used for services on that route.

g)    To the extent that the capacity is used to provide code share (or joint) services on the route, the airlines must take all reasonable steps to ensure that passengers are informed, at the time of booking, of the carrier actually operating the flight. Nothing in this determination exempts the airlines from complying with the Australian Consumer Law.

h)    Changes in relation to the ownership and control of the airlines authorised to utilise the capacity are permitted except to the extent that any change:

  • results in the designation of the relevant airline as an Australian carrier under the Australia – Vanuatu air services arrangements being withdrawn; or
  • has the effect that another Australian carrier, or a person (or group of persons) having substantial ownership or effective control of another Australian carrier, would take substantial ownership of Virgin Australia International Airlines Pty Ltd or be in a position to exercise effective control of Virgin Australia International Airlines Pty Ltd without the prior consent of the Commission.

 

Dated:      14  April 2023

 

GENEVIEVE BUTLER - CHAIRPERSON

JANE MCKEON - COMMISSIONER