Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191

The Court determined that only in respect of the Hawthorn and Richmond sites did the CFMEU, acting in concert with shop stewards, implement the Ban Against Boral in a manner prohibited by s 45D(1), for the purpose of and with the likely effect of causing substantial loss or damage to Boral's business. At other sites, insufficient evidence existed of concerted action or implementation of the ban as pleaded. The conduct at the two successful sites included threats (via safety checks) directed at customers to deter use of Boral, and, given the finding of a communicated instruction and the objective purpose, the statutory requirements were met.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: The Construction, Forestry, Mining and Energy Union; Second Respondent: John Setka; Third Respondent: Shaun Michael Reardon
Jurisdiction
Australia
Judgment Date
05 October 2017
Procedural Posture
Civil / Judgment on Liability
Outcome
Partially in favour of the applicant; contraventions established only in respect of the Hawthorn and Richmond sites.
Legal Topics
Secondary Boycott, Attempted Secondary Boycott, Acting in Concert, Substantial Loss or Damage, Rebuttable Presumption, Admissibility of Evidence, Coincidence Reasoning
Competition Law Secondary Boycott Attempted Secondary Boycott Acting in Concert Substantial Loss or Damage Rebuttable Presumption Admissibility of Evidence Coincidence Reasoning

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Parties

Australian Competition and Consumer Commission

Applicant

The Construction, Forestry, Mining and Energy Union

First Respondent

John Setka

Second Respondent

Shaun Michael Reardon

Third Respondent

Procedural Posture

Civil / Judgment on Liability

Legal Issues

  1. 1 Whether the CFMEU, acting in concert with shop stewards and officials, engaged in or attempted to engage in conduct constituting a secondary boycott contrary to s 45D(1) of the Competition and Consumer Act 2010 (Cth)
  2. 2 Whether there was an 'instruction' from the CFMEU to stop Boral supplying concrete to sites, and, if so, whether it was implemented
  3. 3 Whether the conduct was for the purpose of causing and likely to cause substantial loss or damage to Boral's business

Ratio Decidendi

The Court determined that only in respect of the Hawthorn and Richmond sites did the CFMEU, acting in concert with shop stewards, implement the Ban Against Boral in a manner prohibited by s 45D(1), for the purpose of and with the likely effect of causing substantial loss or damage to Boral's business. At other sites, insufficient evidence existed of concerted action or implementation of the ban as pleaded. The conduct at the two successful sites included threats (via safety checks) directed at customers to deter use of Boral, and, given the finding of a communicated instruction and the objective purpose, the statutory requirements were met.

Court Disposition

Partially in favour of the applicant; contraventions established only in respect of the Hawthorn and Richmond sites.