Date: 2 April 2025
Source: Australian Competition & Consumer Commission

Abstract:

The High Court of Australia has dismissed the Australian Competition and Consumer Commission’s (ACCC) appeal of a Full Federal Court judgment in favour of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) along with construction company J Hutchinson Pty Ltd (Hutchinson). At issue was whether the act of Hutchinson succumbing to the CFMEU’s threat of industrial action amounted to an understanding to boycott a waterproofing subcontractor at a Brisbane construction site in 2016.

The majority of the High Court rejected the ACCC's stance on the basis that arrival at an understanding for the purposes of s 45E(3) requires proof of express or tacit communication between the parties. Section 45E(3) of the Competition and Consumer Act 2010 (Cth) prohibits a person from arriving at an understanding with an organisation of employees that contains a boycott provision.

Case history

On 14 February 2022, a Federal Court trial judge found that the CFMEU and Hutchinson made an arrangement or understanding to boycott a waterproofing subcontractor, and the parties were ordered to pay penalties of $750,000 and $600,000 respectively…