COMPETITION AND CONSUMER ACT 2010 - SECT 45DC Involvement and liability of employee organisations

COMPETITION AND CONSUMER ACT 2010 - SECT 45DC

Certain organisations taken to be acting in concert

  (1)   If 2 or more persons (the participants ), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections   45D, 45DA and 45DB:

  (a)   to engage in that conduct in concert with the participants; and

  (b)   to have engaged in that conduct for the purposes for which the participants engaged in it.

Consequences of organisation contravening subsection   45D(1), 45DA(1) or 45DB(1)

  (2)   The consequences of an organisation of employees engaging, or being taken by subsection   (1) to engage, in conduct in concert with any of its members or officers in contravention of subsection   45D(1), 45DA(1) or 45DB(1) are as set out in subsections   (3), (4) and (5).

Loss or damage taken to have been caused by organisation's conduct

  (3)   Any loss or damage suffered by a person as a result of the conduct is taken, for the purposes of this Act, to have been caused by the conduct of the organisation.

Taking proceedings if organisation is a body corporate

  (4)   If the organisation is a body corporate, no action under section   82 to recover the amount of the loss or damage may be brought against any of the members or officers of the organisation in respect of the conduct.

Taking proceedings if organisation is not a body corporate

  (5)   If the organisation is not a body corporate:

  (a)   a proceeding in respect of the conduct may be brought under section   77, 80 or 82 against an officer of the organisation as a representative of the organisation's members and the proceeding is taken to be a proceeding against all the persons who were members of the organisation at the time when the conduct was engaged in; and

  (b)   subsection   76(2) does not prevent an order being made in a proceeding mentioned in paragraph   (a) that was brought under section   77; and

  (c)   the maximum pecuniary penalty that may be imposed in a proceeding mentioned in paragraph   (a) that was brought under section   77 is the penalty applicable under section   76 in relation to a body corporate; and

  (d)   except as provided by paragraph   (a), a proceeding in respect of the conduct must not be brought under section   77 or 82 against any of the members or officers of the organisation; and

  (e)   for the purpose of enforcing any judgment or order given or made in a proceeding mentioned in paragraph   (a) that was brought under section   77 or 82, process may be issued and executed against the following property or interests as if the organisation were a body corporate and the absolute owner of the property or interests:

  (i)   any property of the organisation or of any branch or part of the organisation, whether vested in trustees or however otherwise held;

  (ii)   any property in which the organisation or any branch or part of the organisation has a beneficial interest, whether vested in trustees or however otherwise held;

  (iii)   any property in which any members of the organisation or of a branch or part of the organisation have a beneficial interest in their capacity as members, whether vested in trustees or however otherwise held; and

  (f)   if paragraph   (e) applies, no process is to be issued or executed against any property of members or officers of the organisation or of a branch or part of the organisation except as provided in that paragraph.