Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1—Main amendments
1 Section 45D
Repeal the section, substitute:
45D Secondary boycotts for the purpose of causing substantial loss or damage
(1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and
(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
(3) Subsection (1) applies if the fourth person is a corporation.
(4) Subsection (1) also applies if:
(a) the third person is a corporation and the fourth person is not a corporation; and
(b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.
45DA Secondary boycotts for the purpose of causing substantial lessening of competition
(1) In the circumstances specified in subsection (3), a person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and
(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services.
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
(3) Subsection (1) applies if:
(a) the third person or the fourth person is a corporation, or both of them are corporations; and
(b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of one of those persons who is a corporation.
45DB Boycotts affecting trade or commerce
(1) A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
45DC Involvement and liability of employee organisations
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.
45DD Situations in which boycotts permitted
Dominant purpose of conduct relates to employment matters—conduct by a person
(1) A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.
Dominant purpose of conduct relates to employment matters—conduct by employee organisation and employees
(2) If:
(a) an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:
(i) an organisation of employees; or
(ii) an officer of an organisation of employees; and
(b) the conduct is only engaged in by the persons covered by paragraph (a); and
(c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a);
the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in the conduct.
Dominant purpose of conduct relates to environmental protection or consumer protection
(3) A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if:
(a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and
(b) engaging in the conduct is not industrial action.
Note 1: If an environmental organisation or a consumer organisation is a body corporate:
(a) it is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption; and
(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.
Note 2: If an environmental organisation or a consumer organisation is not a body corporate:
(a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the organisation as such); but
(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.
Meaning of industrial action —basic definition
(4) In subsection (3), industrial action means:
(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.
For this purpose, industrial body , industrial dispute and industrial instrument have the meanings given by subsection 298B(1) of the Workplace Relations Act 1996 .
Meaning of industrial action —further clarification
(5) For the purposes of subsection (3):
(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
Subsections (1), (2) and (3) do not protect people not covered by them
(6) In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct.
Defences to contravention of subsection 45DB(1)
(7) In a proceeding under this Act in relation to a contravention of subsection 45DB(1), it is a defence if the defendant proves:
(a) that a notice in respect of the conduct concerned has been duly given to the Commission under subsection 93(1) and the Commission has not given a notice in respect of the conduct under subsection 93(3) or (3A); or
(b) that the dominant purpose for which the defendant engaged in the conduct concerned was to preserve or further a business carried on by him or her.
Each person to prove defence
(8) If:
(a) a person engages in conduct in concert with another person; and
(b) the other person proves a matter specified in paragraph (7)(a) or (b) in respect of that conduct;
in applying subsection 45DB(1) to the first person, ignore the fact that the other person has proved that matter.
Note: Section 170MT of the Workplace Relations Act 1996 limits the right to bring actions under this Act in respect of industrial action that is protected action for the purposes of that section.
45E Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services
Situations to which section applies
(1) This section applies in the following situations:
(a) a supply situation —in this situation, a person (the first person ) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person ); or
(b) an acquisition situation —in this situation, a person (the first person ) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person ).
Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations.
Note : For the meanings of accustomed to supply and accustomed to acquire , see subsections (5) and (7).
Prohibition in a supply situation
(2) In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or
(b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:
(i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and
(ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.
Prohibition in an acquisition situation
(3) In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or
(b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition:
(i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and
(ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.
No contravention if second person gives written consent to written contract etc.
(4) Subsections (2) and (3) do not apply to a contract, arrangement or understanding if it is in writing and was made or arrived at with the written consent of the second person.
Meaning of accustomed to supply
(5) In this section, a reference to a person who has been accustomed to supply goods or services to a second person includes (subject to subsection (6)):
(a) a regular supplier of such goods or services to the second person; or
(b) the latest supplier of such goods or services to the second person; or
(c) a person who, at any time during the immediately preceding 3 months, supplied such goods or services to the second person.
Exception to subsection (5)
(6) If:
(a) goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first person;
then, for the purposes of the application of this section in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to supply such goods or services to the second person.
Meaning of accustomed to acquire
(7) In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)):
(a) a regular acquirer of such goods or services from the second person; or
(b) a person who, when last acquiring such goods or services, acquired them from the second person; or
(c) a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person.
Exception to subsection (7)
(8) If:
(a) goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has refused to supply such goods or services to the first person;
then, for the purposes of the application of this section in relation to anything done after the second person has refused to supply goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to acquire such goods or services from the second person.
Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).
45EA Provisions contravening section 45E not to be given effect
A person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person:
(a) contravened subsection 45E(2) or (3); or
(b) would have contravened subsection 45E(2) or (3) if:
(i) section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and
(ii) the words “is in writing and” and “written” were not included in subsection 45E(4).
Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).
45EB Sections 45D to 45EA do not affect operation of other provisions of Part
Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part.
2 Subsection 51(2)
After “section”, insert “45D, 45DA, 45DB, 45E, 45EA or”.
3 At the end of subsection 76(1)
Add:
Note: Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. ( Boycott conduct is defined in subsection 87AA(2).)
4 Subsection 76(1A)
Repeal the subsection, substitute:
(1A) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:
(a) for each act or omission to which this section applies that relates to section 45D, 45DB, 45E or 45EA—$750,000; and
(b) for each other act or omission to which this section applies—$10,000,000.
5 After subsection 76(1B)
Insert:
(2) Nothing in subsection (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section 45D, 45DA, 45DB, 45E or 45EA.
6 At the end of section 76
Add:
(4) The single pecuniary penalty that may be imposed in accordance with subsection (3) in respect of conduct that contravenes provisions to which the 2 limits in subsection (1A) apply is an amount up to the higher of those limits.
7 At the end of subsection 80(1)
Add:
Note: Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. ( Boycott conduct is defined in subsection 87AA(2).)
8 After section 80
Insert:
80AA Division 7 of Part VI of the Workplace Relations Act does not prevent granting of injunction
Nothing in Division 7 of Part VI of the Workplace Relations Act 1996 prevents the Court granting an injunction under section 80.
(1) The Court may stay the operation of an injunction granted under section 80 if:
(a) the injunction is in respect of conduct that constitutes or would constitute a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA or an associated contravention; and
(b) there is a proceeding in respect of a dispute relating to the conduct pending before:
(i) the Australian Industrial Relations Commission under Division 7 of Part VI of the Workplace Relations Act 1996 ; or
(ii) a court, tribunal or authority of a State or Territory under a prescribed provision of a law of the State or Territory; and
(c) the conduct relates to the supply of goods or services to, or the acquisition of goods or services from, a person who is or becomes a party to the proceeding referred to in paragraph (b); and
(d) any of the following has applied for the stay:
(i) a Minister of the Commonwealth;
(ii) if subparagraph (b)(ii) applies—a Minister of the State or Territory concerned;
(iii) a party to the proceeding for the injunction; and
(e) the Court considers that granting the stay:
(i) would be likely to facilitate the settlement of the dispute by conciliation; and
(ii) would, in all the circumstances, be just.
(2) An order staying the operation of the injunction may be expressed to have effect for a specified period and may be varied or rescinded by the Court at any time.
(3) If the proceeding referred to in paragraph (1)(b) is terminated because the Australian Industrial Relations Commission, or the State or Territory court, tribunal or authority, has settled the dispute to which the conduct relates by conciliation, the Court must not make any order in relation to the costs of the proceedings in respect of the granting of the injunction or in relation to the costs of any proceedings for the rescission of the injunction.
(4) Nothing in this section affects other powers of the Court.
(5) In this section:
"associated contravention" means:
(a) attempting to contravene subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or
(b) aiding, abetting, counselling or procuring a person to contravene any of those provisions; or
(c) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to contravene any of those provisions; or
(d) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of any of those provisions; or
(e) conspiring with others to contravene any of those provisions.
"injunction" includes an interim injunction.
9 After section 87A
Insert:
87AA Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct
(1) In exercising its powers in proceedings under this Part in relation to boycott conduct, the Court is to have regard to any action the applicant in the proceedings has taken, or could take, before an industrial authority in relation to the boycott conduct. In particular, the Court is to have regard to any application for conciliation that the applicant has made or could make.
(2) In this section:
"boycott conduct" means conduct that constitutes or would constitute:
(a) a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or
(b) attempting to contravene one of those provisions; or
(c) aiding, abetting, counselling or procuring a person to contravene one of those provisions; or
(d) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to contravene one of those provisions; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of one of those provisions; or
(f) conspiring with others to contravene one of those provisions.
"industrial authority" means:
(a) the Australian Industrial Relations Commission; or
(b) a State industrial authority as defined in subsection 4(1) of the Workplace Relations Act 1996 .
10 Section 45D of the Schedule
Repeal the section, substitute:
45D Secondary boycotts for the purpose of causing substantial loss or damage
(1) A person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and
(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
45DA Secondary boycotts for the purpose of causing substantial lessening of competition
(1) A person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and
(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services.
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
Note: This version of Part IV does not contain an equivalent of section 45DB of the Trade Practices Act 1974 .
45DC Involvement and liability of employee organisations
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 and 45DA:
(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) or 45DA(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) or 45DA(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.
45DD Situations in which boycotts permitted
Dominant purpose of conduct relates to employment matters—conduct by a person
(1) A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.
Dominant purpose of conduct relates to employment matters—conduct by employee organisation and employees
(2) If:
(a) an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:
(i) an organisation of employees; or
(ii) an officer of an organisation of employees; and
(b) the conduct is only engaged in by the persons covered by paragraph (a); and
(c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a);
the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in the conduct.
Dominant purpose of conduct relates to environmental protection or consumer protection
(3) A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in conduct if:
(a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and
(b) engaging in the conduct is not industrial action.
Note 1: If an environmental organisation or a consumer organisation is a body corporate:
(a) it is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption; and
(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption.
Note 2: If an environmental organisation or a consumer organisation is not a body corporate:
(a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1) and 45DA(1) (consequently, this exemption does not cover the organisation as such); but
(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption.
Meaning of industrial action —basic definition
(4) In subsection (3), industrial action means:
(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.
For this purpose, industrial body , industrial dispute and industrial instrument have the meanings given by subsection 298B(1) of the Workplace Relations Act 1996 .
Meaning of industrial action —further clarification
(5) For the purposes of subsection (3):
(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
Subsections (1), (2) and (3) do not protect people not covered by them
(6) In applying subsection 45D(1) or 45DA(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct.
Note: Section 170MT of the Workplace Relations Act 1996 limits the right to bring actions under the Competition Code in respect of industrial action that is protected action for the purposes of that section.
45E Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services
Situations to which section applies
(1) This section applies in the following situations:
(a) a supply situation —in this situation, a person (the first person ) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person ); or
(b) an acquisition situation —in this situation, a person (the first person ) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person ).
Note : For the meanings of accustomed to supply and accustomed to acquire , see subsections (5) and (7).
Prohibition in a supply situation
(2) In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or
(b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:
(i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and
(ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.
Prohibition in an acquisition situation
(3) In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or
(b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition:
(i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and
(ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.
No contravention if second person gives written consent to written contract etc.
(4) Subsections (2) and (3) do not apply to a contract, arrangement or understanding if it is in writing and was made or arrived at with the written consent of the second person.
Meaning of accustomed to supply
(5) In this section, a reference to a person who has been accustomed to supply goods or services to a second person includes (subject to subsection (6)):
(a) a regular supplier of such goods or services to the second person; or
(b) the latest supplier of such goods or services to the second person; or
(c) a person who, at any time during the immediately preceding 3 months, supplied such goods or services to the second person.
Exception to subsection (5)
(6) If:
(a) goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first person;
then, for the purposes of the application of this section in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to supply such goods or services to the second person.
Meaning of accustomed to acquire
(7) In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)):
(a) a regular acquirer of such goods or services from the second person; or
(b) a person who, when last acquiring such goods or services, acquired them from the second person; or
(c) a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person.
Exception to subsection (7)
(8) If:
(a) goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has refused to supply such goods or services to the first person;
then, for the purposes of the application of this section in relation to anything done after the second person has refused to supply goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to acquire such goods or services from the second person.
Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).
45EA Provisions contravening section 45E not to be given effect
A person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person:
(a) contravened subsection 45E(2) or (3); or
(b) would have contravened subsection 45E(2) or (3) if:
(i) section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and
(ii) the words “is in writing and” and “written” were not included in subsection 45E(4).
Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).
45EB Sections 45D to 45EA do not affect operation of other provisions of Part
Nothing in section 45D, 45DA, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part.
11 Subsection 51(2) of the Schedule
After “section”, insert “45D, 45DA, 45E, 45EA or”.
Part 2—Consequential amendments
Jurisdiction of Courts (Cross‑vesting) Act 1987
12 Subsection 3(1) (paragraph (a) of the definition of special federal matter )
After “ Trade Practices Act 1974 ”, insert “(other than under section 45D, 45DA, 45DB, 45E or 45EA)”.
13 Paragraph 4(4)(c)
After “section”, insert “45D, 45DA, 45DB, 45E, 45EA,”.
14 Subsection 4(1)
Insert:
"organisation of employees" means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment.
15 Section 4F
Add at the end:
(2) This section does not apply for the purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3).
16 Paragraph 6(2)(a)
After “than in”, insert “section 45DB or”.
17 Paragraph 6(2)(b)
After “45D”, insert “to 45EB (other than section 45DB)”.
18 Paragraph 6(2)(ea)
Repeal the paragraph, substitute:
(ea) subsections 45D(3), 45D(4) and 45DA(3) were repealed, the words “In the circumstances specified in subsections (3) and (4)” were omitted from subsection 45D(1) and the words “In the circumstances specified in subsection (3)” were omitted from subsection 45DA(1);
19 After paragraph (6)(2)(ea)
Insert:
(eb) the second sentence in subsection 45E(1) were omitted;
20 Paragraph 6(2)(h)
After “(ea)”, insert “, (eb)”.
21 Subsection 88(7)
After “45D”, insert “, 45DA or 45DB”.
22 After subsection 88(7)
Insert:
(7A) Subject to this Part, the Commission may, on application by a person, grant an authorisation to the person to engage in conduct to which section 45E or 45EA would or might apply. While the authorisation remains in force, that section does not apply in relation to the person engaging in that conduct.
23 Subparagraph 90(8)(a)(ii)
After “subsection 88(7)”, insert “or (7A)”.
24 Paragraph 90(10)(a)
After “(7),”, insert “(7A),”.
25 Subsection 4(1)
Insert:
"boycott" means a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3), or section 45EA, of the Trade Practices Act 1974 .
26 Subsection 4(1)
Insert:
"boycott conduct" means conduct that constitutes or would constitute:
(a) a boycott; or
(b) attempting to commit a boycott; or
(c) aiding, abetting, counselling or procuring a person to commit a boycott; or
(d) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to commit a boycott; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the committing by a person of a boycott; or
(f) conspiring with others to commit a boycott.
27 Division 7 of Part VI
Repeal the Division, substitute:
Division 7—Disputes relating to boycotts
This Division applies to a dispute:
(a) that relates to a boycott or a threatened, impending or probable boycott; and
(b) in relation to which either of the following subparagraphs applies:
(i) the dispute relates, or may relate, to work done or to be done under an award or a certified agreement;
(ii) the dispute involves an organisation of employees or a member or officer of such an organisation.
(1) If a person applies to the Court under section 80 of the Trade Practices Act 1974 for an injunction restraining another person from engaging in boycott conduct in relation to which there is a dispute to which this Division applies, either person may notify the President or a Registrar of the dispute.
(2) The Minister may notify the President or a Registrar of a dispute to which this Division applies or may apply.
(3) If a Registrar is notified of a dispute under this section, the Registrar must inform the President.
(1) Subject to subsection (2), if:
(a) a person notifies the President or a Registrar under subsection 157(1) of a dispute to which this Division applies; or
(b) the Minister notifies the President or a Registrar under subsection 157(2) of a dispute to which this Division applies or may apply; or
(c) the President otherwise becomes aware of a dispute to which this Division applies;
the Commission is empowered to settle the dispute by conciliation.
(2) If:
(a) the dispute relates to a boycott, or a threatened, impending or probable boycott, in relation to which there are proceedings pending before the Court; and
(b) the Australian Competition and Consumer Commission is a party to the proceedings;
the Commission is not empowered to settle the dispute under subsection (1) unless the Australian Competition and Consumer Commission consents, by written notice given to the Commission, to the Commission exercising its powers under that subsection in relation to the dispute.
If the Commission is empowered under subsection 158(1) to settle a dispute to which this Division applies by conciliation, the President must refer it to a Presidential Member for conciliation.
(1) The parties to a proceeding before the Commission in relation to a dispute to which this Division applies are:
(a) if the dispute arose in relation to the employment of members of an organisation of employees—that organisation; and
(b) employers of such employees; and
(c) organisations of which any such employers are members; and
(d) if the dispute relates to conduct in relation to the supply of goods or services to, or the acquisition of goods or services from, a person who is not already a party—that person; and
(e) any Minister who notifies the Commission that he or she wishes to become a party; and
(f) such other persons as the Presidential Member concerned, by order, specifies.
(2) A Registrar must give notice of the proceeding to:
(a) every person who is a party to the proceeding under paragraph (1)(d), (e) or (f); and
(b) every other person that the Presidential Member directs is to be given notice.
(3) Subsection (1) does not affect the operation of sections 43 and 44.
161 Application of other provisions of Act
Subject to this Division, the provisions of this Act relating to an industrial dispute (other than the provisions that relate to arbitration powers or to the making of awards or certifying of agreements) apply in relation to a proceeding before the Commission in relation to a dispute to which this Division applies as if:
(a) a reference to an industrial dispute were a reference to the dispute to which this Division applies; and
(b) a reference to the parties to an industrial dispute were a reference to the parties to the proceeding before the Commission; and
(c) any other necessary changes were made.
162 Trade Practices Act and application laws not affected
(1) This Division does not affect the operation of the Trade Practices Act 1974 .
(2) This Division is not intended to exclude the operation of any application law, as defined in section 150A of the Trade Practices Act 1974 , to the extent that the application law is capable of operating concurrently with this Division.
Unless the contrary intention appears, expressions used in or in relation to this Division that are used in the Trade Practices Act 1974 have, in this Act, the same respective meanings as those expressions have in the Trade Practices Act 1974 .
28 Section 164
Repeal the section.
Part 3—Transitional and saving provisions
29 Definitions
In this Part:
"amended TP Act" means the Trade Practices Act 1974 as in force after the commencement.
"amended WR Act" means the Workplace Relations Act as in force after the commencement.
"commencement" means the commencement of this Schedule.
"Commission" has the same meaning as in the amended WR Act.
"conduct" includes threatened, impending or probable conduct.
"jurisdiction transfer day" means the transfer day as defined in Part 3 of Schedule 16.
"old TP Act" means the Trade Practices Act 1974 as in force immediately before the commencement.
"old WR Act" means the Workplace Relations Act as in force immediately before the commencement.
30 Conciliation proceedings in progress under Division 7 of Part VI of old WR Act
If:
(a) before the commencement, the Commission was exercising conciliation powers under Division 7 of Part VI of the old WR Act in relation to a dispute about conduct; and
(b) that conduct continues after the commencement; and
(c) paragraphs 156(a) and (b) of the amended WR Act are satisfied in relation to the dispute;
the Commission may exercise conciliation powers under the amended WR Act in relation to the dispute as if the Commission had been notified of the dispute under section 157 of the amended WR Act.
31 If certificate under section 163D of old WR Act granted in relation to conduct that ended before commencement
If, before the commencement, the Commission granted a certificate under section 163D of the old WR Act in relation to a dispute about conduct and the conduct ended before the commencement:
(a) the old WR Act continues to apply to that conduct as though the amendments made by this Schedule had not been made; and
(b) subject to paragraph (c), a reference in Division 7 of Part VI of the old WR Act as so applying to the “Court” is to be taken, on and after the jurisdiction transfer day, to be a reference to the Federal Court of Australia; and
(c) if, under Part 3 of Schedule 16, the Industrial Relations Court continues to have jurisdiction in relation to proceedings begun before the jurisdiction transfer day in relation to that conduct, that Court may, in accordance with that Part of that Schedule, continue to exercise jurisdiction in the proceedings.
Note: If no certificate was granted under section 163D of the old WR Act in relation to conduct that ended before the commencement, then (subject to item 30) no relief is available under the old WR Act or the amended TP Act in relation to that conduct.
32 If certificate under section 163D of old WR Act granted in relation to conduct that continues after commencement
(1) This item applies if, before the commencement, the Commission granted a certificate under section 163D of the old WR Act in relation to a dispute about conduct and the conduct continues after the commencement.
(2) In relation to so much of the conduct as occurred before the commencement:
(a) the old WR Act continues to apply to that conduct as though the amendments made by this Schedule had not been made; and
(b) subject to paragraph (c), a reference in Division 7 of Part VI of the old WR Act as so applying to the “Court” is to be taken, on and after the jurisdiction transfer day, to be a reference to the Federal Court of Australia; and
(c) if, under Part 3 of Schedule 16, the Industrial Relations Court continues to have jurisdiction in relation to proceedings begun before the jurisdiction transfer day in relation to that conduct, that Court may, in accordance with that Part of that Schedule, continue to exercise jurisdiction in the proceedings.
(3) In relation to so much of the conduct as occurs after the commencement, the amended TP Act applies as if that conduct had started on the commencement.
33 If no certificate under section 163D of old WR Act granted in relation to conduct that continues after commencement
If:
(a) before the commencement, there was a dispute about conduct to which Division 7 of Part VI of the old WR Act applied; and
(b) no certificate under section 163D of the old WR Act was granted in relation to the dispute before the commencement; and
(c) the conduct continues after the commencement;
then, in relation to so much of the conduct as occurs after the commencement, the amended TP Act applies as if that conduct had started on the commencement.
Note: If no certificate was granted under section 163D of the old WR Act in relation to conduct that continues after the commencement, then (subject to item 30) no relief is available under the old WR Act or the amended TP Act in relation to so much of the conduct as occurred before the commencement.
34 If conduct to which section 45D of old TP Act applied ended before commencement
If conduct to which section 45D of the old TP Act applied ended before the commencement, the old TP Act continues to apply to that conduct as though the amendments made by this Schedule had not been made.
35 If conduct to which section 45D of old TP Act applied continues after commencement
(1) This item applies if conduct to which section 45D of the old TP Act applied started before the commencement and continues after the commencement.
(2) In relation to so much of the conduct as occurred before the commencement, the old TP Act continues to apply to that conduct as though the amendments made by this Schedule had not been made.
(3) In relation to so much of the conduct as occurs after the commencement, the amended TP Act applies as if that conduct started on the commencement.
36 Power to vary or rescind orders and injunctions made under repealed provisions
(1) An order or injunction:
(a) made by a court before the commencement under or in relation to a repealed provision; or
(b) made by a court after the commencement under or in relation to a repealed provision as the provision continues to apply because of this Part;
may, subject to subsection (2), be varied or rescinded by the court after the commencement, despite the repeal of the provision, as if the amendments made by this Schedule had not been made.
(2) If the court that made the order or injunction is or was the Industrial Relations Court of Australia, the power to vary or rescind the order or injunction given by subsection (1) is, on or after the jurisdiction transfer day, to be exercised by the Federal Court of Australia, unless Part 3 of Schedule 16 provides for the Industrial Relations Court of Australia to continue to exercise jurisdiction in proceedings for the variation or rescission of the order or injunction.
(3) In this section:
"repealed provision" means:
(a) a provision of Division 7 of Part VI of the old WR Act; or
(b) section 45D of the old TP Act.
37 Power to vary or revoke decisions of Commission made under repealed provisions
(1) A decision of the Commission:
(a) made before the commencement under or in relation to a repealed provision; or
(b) made after the commencement under or in relation to a repealed provision as the provision continues to apply because of this Part;
may be varied or revoked by the Commission after the commencement, despite the repeal of the provision, as if the amendments made by this Schedule had not been made.
(2) In this section:
"decision" includes an order, direction or determination.
"repealed provision" means a provision of Division 7 of Part VI of the old WR Act.
[Index]
[Table]
[Search]
[Search this Act]
[Notes]
[Noteup]
[Previous]
[Next]
[Download]
[Help]