High Court rejects ACCC in CFMEU stoush

The news: The High Court has rejected an appeal by the ACCC over an "understanding" between a builder and a union that led to a contractor being excluded from working on a Brisbane project in 2016. The court said that under the Competition and Consumer Act there had to be "proof of express or tacit communication between the parties of a commitment on the part of one party to do that which the other party has demanded of it".

The context: The competition regulator argued Hutchinson Builders had colluded with the CFMEU to engage in anti-competitive behaviour, saying that if one person made a threat and demand to a second person, and the second person capitulates to that threat and acts as demanded it amounts to an understanding under the act. The ACCC won at trial and fines of $600,000 on Hutchinson and $750,000 on the CFMEU, but that decision was overturned by the Full Federal Court.

What they said: ACCC Chair Gina Cass-Gottlieb - "We took this case originally because boycotts are a kind of anti-competitive conduct which harms the economy as well as individual businesses and consumers.

"We took this appeal because the issue of what is needed to prove an arrangement or understanding is an important one for the enforcement of our competition laws.”