Secondary boycott actions under the Competition and Consumer Act 2010

The Australian Competition and Consumer Commission has indicated that it intends to become more active in the area of industrial disputes by reactivating the use of secondary boycott actions. While there have been some notable cases where damages and substantial penalties have been imposed on trade unions that have engaged in secondary boycotts, these proceedings are highly complex and involve substantial evidentiary hurdles. INTRODUCTION

The Australian Competition and Consumer Commission (ACCC) has indicated that it intends to become more active in the area of industrial disputes by re-activating the use of secondary boycott actions.1 The boycott provisions are now contained in the Competition and Consumer Act 2010 (Cth) (CCA), with the provision of greatest significance being s 45D. Although there has been a minor change in wording and arrangement of the legislation, it is in substance a re-enactment of the former Pt IV of the original Trade Practices Act 1974 (Cth) (TPA). While rarely used, there have been some notable cases where damages and substantial penalties have been imposed on trade unions that have engaged in secondary boycotts.2 However, these proceedings are highly complex and involve substantial evidentiary hurdles.

PROHIBITED CONDUCT

Section 45D prohibits conduct by a person "in concert" with a second person from engaging in conduct that "hinders or prevents" a third person supplying goods or services to a fourth person. The section also prevents a third person acquiring goods or services from a fourth person where the conduct is "engaged in for the purpose" and would "have or be likely to have the effect of causing substantial loss or damage" to the business of the fourth person. The section specifically excludes the situation where the fourth person is the employer of the first person or the second person.

"Person"

The use of the word "person" rather than "employee" means that companies, individuals who are not employees (such as union officials and unemployed persons) and many unions, may be caught within the ambit of s 45D. Section 45DC(5) is a provision that was specifically made for proceedings to be taken against an organisation which is not "a body corporate". In those circumstances, proceedings are taken against an officer of the organisation as a representative of the organisation's members.

"In concert"

The phrase "in concert" has a very broad definition. The CCA dictionary refers to the agreement of two or more persons in a design, plan or enterprise. Under s 45D acting "in concert" involves knowing conduct that is the result of communication between the parties and not simply simultaneous actions occurring spontaneously.3 The notion of acting in concert also involves some contemporaneity.4 This requirement of contemporaneous conduct does not mean that the acts constituting the relevant conduct must coincide precisely in time, although, temporal relationship must be sufficiently close to be consistent with the notion of "in concert".5 Particular difficulties arise when the conduct allegedly in concert is engaged in separate locations and at different times.6

"In concert" evidentiary considerations

In Springdale Comfort Pty Ltd v Electrical Trades Union of Workers (WA Branch) Perth [1986] ATPR 40-694, an application for injunctive relief was dismissed because the applicant had not established that the respondents had acted in concert. In that case, the applicant was unable to establish any communication between the ETU and one of its members about enforcing a picket line around the applicant's construction site. Rather, the member, who was an employee of the State Energy Commission, indicated that he did not perform work on the site because it was a long-standing policy of his union, the ETU, not to cross a picket-line. On the other hand, in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees Union [1987] ATPR 40-766 bans imposed by the union against independent contractors, contemporaneously but at separate industrial sites, were held to have established "acting in concert" with their union because of the close temporal connection between the imposition of the bans at the separate sites. Of significance was the fact that the decision of the federal executive to impose the bans had been communicated to members in the union's official magazine.

In AMIEU v Meat and Allied Trades Federation of Australia [1991] ATPR 41-151 (AMIEU case), Gray J held that there must be some evidence of communication between the parties as to their proposed course of action and the acceptance of the obligations to undertake that conduct by at least one party.7 Justice Gray held that while there may have been arrangements or understandings between employees of each of the respective employers who were targeted and their union, there was no evidence that the individual employees in the various workplaces had acted in concert with each other. Interestingly, his Honour commented that the case may have been determined against the union if the rules of the AMIEU had imposed an obligation on the part of members to obey a directive by the union to undertake strike action.

Conduct which "hinders" or "prevents" supply or acquisition

The words "supply", "acquire", "goods" and "services" are all defined in s 4 of the CCA; however, the concepts of "hindering" and "preventing" were not defined by the Act. Authorities relating to these concepts were analysed by the Full Court of the Federal Court of Australia in the Australian Builders' Labourers' Federation Union of Workers (Western Australia Branch) v J-Corp Pty Ltd (1993) 42 FCR 452. In their...