Yesterday the High Court delivered its judgment in ACCC v Hutchinson; ACCC v CFMEU [2025] HCA 10.
J Hutchinson Pty Ltd (“Hutchinson”) was the head contractor on a construction project in Queensland. In March 2016 Hutchinson entered a subcontract with a company to undertake waterproofing works at the site. The subcontractor did not have an enterprise agreement with the Construction, Forestry and Maritime Employees Union (“CFMEU”). The subcontractor performed work in April and May 2016. In June 2016 the CFMEU threatened Hutchinson with industrial action if the subcontractor was allowed back on site. Hutchinson terminated the subcontract in July 2016. Hutchinson did not, however, inform the CFMEU – either expressly or tacitly – that it would terminate the subcontract in response to its threat.
The ACCC commenced proceedings against Hutchinson and the CFMEU. The primary judge found that Hutchinson had contravened ss 45E(3) and 45EA of the Competition and Consumer Act 2010 (Cth) (the Act) by making, and giving effect to, an arrangement or arriving at an understanding with the CFMEU containing a provision to the effect that Hutchinson would terminate the subcontract or otherwise cease to acquire services from the subcontractor. The primary judge also found that the CFMEU was knowingly concerned in, or party to, and induced Hutchinson’s contraventions. On appeals to the Full Court of the Federal Court, the Full Court found that Hutchinson had succumbed to the CFMEU’s threats, but that there was no “arrangement” or “understanding” between Hutchinson and the CFMEU for the purposes of ss 45E(3) and 45EA of the Act.
A majority of the High Court (4:1) dismissed the ACCC’s appeals from the Full Court of the Federal Court. The majority rejected the ACCC’s contention that a person who succumbs to a threat of industrial action by doing what is demanded under sanction of the threat, without express or tacit communication of a commitment to do so, does not arrive at an “understanding” with the person who makes the threat for the purposes of s 45E(3) (and s 45EA) of the Act. The majority found that the Full Court was correct to conclude that there was no “understanding” between Hutchinson and the CFMEU for the purposes of ss 45E(3) and 45EA of the Act in the absence of any proof of communication, express or tacit, between them by which the parties reached a common mind.
Ruth Higgins SC and Tim Rogan of Banco Chambers, with Brendan Lim, acted for Hutchinson, instructed by Gadens.
Justin Gleeson SC and Megan Caristo acted for the CFMEU, instructed by Hall Payne Lawyers.