Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777

Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777

A contract, arrangement or understanding was entered into between Edison and CEPU prior to and including August 2001, containing a provision committing Edison not to engage electrical contractors at Loy Yang B unless those contractors had a current certified agreement with CEPU. This provision was included for the operative purpose of preventing or hindering Edison from acquiring services from contractors without such an agreement—including DJN. Edison thereby contravened s 45E(3) and s 45EA of the Trade Practices Act 1974 (Cth), and CEPU is liable for aiding, abetting, and being knowingly concerned in and party to the contraventions.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: IPM Operation and Maintenance Loy Yang Pty Ltd (formerly known as Edison Mission Operation and Maintenance Loy Yang Pty Ltd) (ACN 055 563 696); Second Respondent: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Jurisdiction
Australia
Judgment Date
19 December 2006
Procedural Posture
Civil / Final Judgment
Outcome
Declaration and final injunctions granted against the Second Respondent; ACCC entitled to declaration of CEPU’s accessorial liability; injunctive relief for three years.
Legal Topics
Restrictive Trade Practices, Accessorial Liability, Contract, Arrangement or Understanding, Purpose Under Trade Practices Act, Declaratory and Injunctive Relief
Competition Law Industrial Law Restrictive Trade Practices Accessorial Liability Contract, Arrangement or Understanding Purpose Under Trade Practices Act Declaratory and Injunctive Relief

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Parties

Australian Competition and Consumer Commission

Applicant

IPM Operation and Maintenance Loy Yang Pty Ltd (formerly known as Edison Mission Operation and Maintenance Loy Yang Pty Ltd) (ACN 055 563 696)

First Respondent

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Second Respondent

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether a contract, arrangement or understanding between IPM Operation and Maintenance Loy Yang Pty Ltd and CEPU contravened ss 45E and 45EA of the Trade Practices Act 1974 (Cth)
  2. 2 Whether CEPU is liable as an accessory under ss 76 and 80 of the Trade Practices Act
  3. 3 Whether the arrangement prevented or hindered the company from acquiring goods or services from certain contractors

Ratio Decidendi

A contract, arrangement or understanding was entered into between Edison and CEPU prior to and including August 2001, containing a provision committing Edison not to engage electrical contractors at Loy Yang B unless those contractors had a current certified agreement with CEPU. This provision was included for the operative purpose of preventing or hindering Edison from acquiring services from contractors without such an agreement—including DJN. Edison thereby contravened s 45E(3) and s 45EA of the Trade Practices Act 1974 (Cth), and CEPU is liable for aiding, abetting, and being knowingly concerned in and party to the contraventions.

Court Disposition

Declaration and final injunctions granted against the Second Respondent; ACCC entitled to declaration of CEPU’s accessorial liability; injunctive relief for three years.

Orders

  • The Court declares CEPU aided, abetted, counselled, procured, induced, and was knowingly concerned in and party to Edison’s contravention of s 45E(3) of Trade Practices Act 1974 (Cth).
  • The Court declares CEPU counselled, procured, and induced Edison’s contravention of s 45EA.