The Federal Court of Australia today dismissed an application by the Australian Competition and Consumer Commission that the Construction, Forestry, Mining and Energy Union and two of its members were accessories to alleged contraventions by Bovis Lend Lease of the secondary boycott provisions of the Act.*
The ACCC alleged there was a contract, arrangement or understanding between CFMEU and Bovis which stopped Bovis' acquiring plasterboard services from a contractor, Bernmar Projects Pty Ltd, during the construction of the Landmark medium density apartments in the Australian Capital Territory in 2003.
Earlier Bovis had cooperated with the ACCC and admitted contraventions of ss45E and 45EA of the Act. In October 2007, Justice Gyles ordered Bovis pay a penalty of $100,000, the ACCC's costs and injunctions restraining Bovis' conduct nationally for a period of four years for its admitted contraventions.**
However, the CFMEU, and CFMEU members Mr David Noonan and Mr Laslo (Les) Lancsar defended the ACCC's allegations and, to ensure they were not prejudiced by Bovis' admissions, the case against these respondents was heard separately by Justice Finn.
After considering the evidence, including of a number of witnesses who were cross examined on their recollection of the relevant facts, Justice Finn found that although: "It may well have been the case that, but for the union's conduct Bernmar may not have been terminated" by Bovis, "I am not satisfied that the actual decision proposed by [Bovis' employees] Hensley and Little was other than one which resulted from their own evaluation – albeit in pressured circumstances – as to what was the appropriate course to take in the circumstances…"
Justice Finn was not reasonably satisfied that Bovis' conduct towards Bernmar flowed from a contract, arrangement or understanding with the union and he dismissed the ACCC's application.
Justice Gyles' findings against Bovis are not affected by this judgment.
*S45E and s45EA of the Trade Practices Act 1974. s45E prohibits certain conduct which indirectly leads to a secondary boycott. s45E(3) prevents a person entering into a contract, arrangement or understanding with an organisation of employees for a purpose of preventing or hindering that first person from acquiring or continuing to acquire goods or services from a second person. Section 45EA prohibits that first person giving effect to that contract, arrangement or understanding.
** See previous ACCC news release Bovis Lend Lease Ordered to Pay $100,000 Penalty 265/07.
