Australian Competition and Consumer Commission v J Hutchinson Pty Ltd [2022] FCA 98

Federal Court of Australia

Australian Competition and Consumer Commission v J Hutchinson Pty Ltd [2022] FCA 98 File number(s): QUD 374 of 2020

Judgment of: DOWNES J

Date of judgment: 14 February 2022

Catchwords: COMPETITION LAW – where construction company and union had practice of consulting about proposed subcontractors – where union used consultation process to pressure construction company to engage subcontractors which had an enterprise bargaining agreement which was covered by that union – where construction company engaged subcontractor which did not have such an agreement – where union was not consulted prior to engagement of that subcontractor – where union complained about that engagement – where union threatened industrial action if subcontractor was allowed back on site – where union did not consent to requests by subcontractor to go back on site – where construction company terminated subcontractor and engaged another subcontractor which had an enterprise bargaining agreement and was on list of approved subcontractors – whether engagement of contractor was breach of enterprise bargaining agreement – whether acquisition situation within s 45E(1) Competition and Consumer Act 2010 (Cth) – whether arrangement or understanding within s 45E(3) Competition and Consumer Act 2010 (Cth) – whether purpose within s 45E(3) Competition and Consumer Act 2010 (Cth) – whether union had accessorial liability where the union was a party to the prohibited arrangement or understanding INDUSTRIAL LAW – whether breach of obligation in enterprise bargaining agreement to consult potentially affected employees and their union – where purpose of clause is to protect job security of employees – where potentially affected employees are those whose job security might be affected by the engagement of contractors – where, after such consultation, contractors are required to be engaged on same terms and conditions (or terms no less favourable) than employees – whether breach of obligation by party to enterprise bargaining agreement where contractor engaged by it is required to but fails to make payments into funds for benefit of its employees EVIDENCE – where previous proceedings against the union and a witness resulted in a settlement – where a term of the settlement was that certain allegations of fact and liability would be admitted in defence pursuant to s 191 Evidence Act 1995 (Cth) – whether admissions made in the defences are a representation of the witness that the facts alleged in the statement of claim are true – whether defences are prior inconsistent statement within meaning of the Evidence Act 1995 (Cth) PRACTICE AND PROCEDURE – where witness cross-examined on documents without objection – whether objection only taken when documents sought to be tendered affects admissibility of answers given prior to objection being taken – where objection taken after conclusion of cross-examination related to matter of procedure – whether it is unfair to cross-examining party to take procedural objection after conclusion of cross-examination