The High Court has granted the ACCC special leave to appeal a Full Federal Court decision handed down on 29 February 2024 which upheld appeals by the Construction, Forestry and Maritime Employees Union (CFMEU) and construction company J Hutchinson Pty Ltd against an earlier finding that they had reached an anti-competitive boycott arrangement or understanding.
The ACCC had alleged, and the Federal Court trial judge in an earlier judgment had found, that the CFMEU and Hutchinson made an arrangement or understanding to boycott a waterproofing subcontractor at the Brisbane Southpoint A apartments construction site in 2016, meaning the subcontractor could no longer perform the work.
The ACCC's appeal seeks the High Court's ruling on what is required to demonstrate that parties have reached an anti-competitive arrangement or understanding.
"The issue of what is required to prove parties have reached an anti-competitive arrangement or understanding is an important one for the enforcement of our competition laws," ACCC Commissioner Liza Carver said.
The appeal will be heard on a date to be set by the High Court.
Background
Hutchinson is one of Australia's largest privately owned construction companies.
The Construction, Forestry and Maritime Employees Union is a trade union organisation that represents members in a number of industries including the construction industry. When proceedings started it was known as the 'CFMMEU', while today it is known as the 'CFMEU'.
Sections 45E and 45EA of the Competition and Consumer Act prohibit contracts, arrangements or understandings that contain a provision included for the purpose of preventing or hindering the acquisition of goods or services from a supplier, which is also referred to as a "secondary boycott".
On 4 December 2020, the ACCC instituted proceedings against Hutchinson and the CFMEU.
On 14 February 2022, the Federal Court found that by making and acting on the agreement, Hutchinson contravened sections 45E and 45EA of the Competition and Consumer Act.
The CFMEU was found to have been knowingly concerned in, or party to, the contraventions by Hutchinson.
The Court also found that the CFMEU induced Hutchinson's contraventions by threatening or implying that there would be conflict with, or industrial action by, the CFMEU if Hutchinson did not stop using the particular subcontractor.
On 30 August 2022, the Federal Court ordered the CFMEU and Hutchinson to pay penalties of $750,000 and $600,000 respectively.
On 29 February 2024, the Full Federal Court upheld appeals by the CFMEU and Hutchinson against the first-instance decision.
On 2 April 2024, the ACCC sought special leave to appeal to the High Court from the Full Federal Court's judgment that upheld appeals by the CFMEU and Hutchinson.
