The Federal Court has today lifted suppression and non-publication orders in the ACCC case against the CFMEU, and published an unredacted copy of its judgment.
The ACCC commenced proceedings against the CFMEU in November 2014 alleging it had engaged in secondary boycott conduct in breach of section 45D of the Competition and Consumer Act (2010).
Secondary boycotts are anti-competitive practices that can cause significant harm to the economy. Secondary boycott conduct involves at least two people acting in concert to hinder or prevent third parties from acquiring goods or services from, or supplying goods or services to, a fourth person, with the purpose and effect, or likely effect, of causing substantial loss or damage to the business of the fourth person.
The Court handed down its liability judgment in October 2017. This judgment was subject to suppression and non-publication orders, and a redacted version of the judgment was published at that time.
In February 2018 the Court ordered the CFMEU to pay a penalty of $1 million and made declarations.
The Court declared that the CFMEU hindered or prevented the acquisition of concrete from Boral or its subsidiary, Alsafe, at two commercial construction sites in Melbourne for the purpose of causing substantial loss or damage to Boral’s business, in breach of the Competition and Consumer Act.
“This was a significant matter for the ACCC and it is important that, now the suppression orders have been lifted, the public can find out what the Court ruled, including its finding of a ‘Ban against Boral’ and the involvement of CFMEU executives in the conduct.” ACCC Chairman Rod Sims said.
“The Court noted that this conduct should be regarded as very serious, particularly because it involved senior management of the union, including its secretary John Setka, president Ralph Edwards, and vice president Shaun Reardon.”
“This is reflected in the penalties imposed against the CFMEU, which are the highest ever for this type of conduct.”
When the ACCC commenced its case in 2014, it included allegations of undue harassment and coercion against two CFMEU executives, John Setka and Shaun Reardon.
However, after Victoria Police laid criminal charges in relation to the same conduct in December 2015, the ACCC had to abandon these allegations against the executives so the rest of the ACCC’s case could be heard in a timely manner.
The blackmail case against Mr Setka and Mr Reardon was prosecuted by the Victorian Office of Public Prosecutions (OPP). The ACCC was not involved in or consulted about the briefing of the Victorian OPP nor in the decision to prosecute those CFMEU officials.
The commencement of these criminal proceedings overlapped with the ACCC’s civil penalty proceeding and significantly impacted the ACCC’s case as well as our ability to discuss the outcome of the case in full.