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Legislation

Trade Practices (Boycotts) Amendment Act 1980

 

Summary

This amendment Act focussed on the secondary boycott provisions in s 45D

 

Key competition law amendments

The key amendments are reproduced below.

Section 3

Additional operation of Act

Section 6 of the Principal Act is amended-

(a) by inserting "45E," before "46" in paragraph (b) of sub-section (2);

(b) by inserting after paragraph (e) of sub-section (2) the following paragraphs:

"(ea) paragraph 45D (1) (a) were omitted and in paragraph 45D(1)(b) the words 'the fourth person is a corporation and' were omitted; "(eb) sub-section 45E (3) were omitted;"; and

(c) by inserting "(ea), (eb)," after "(e)," in paragraph (h) of sub-section (2).

Section 4

Boycotts

Section 45D of the Principal Act is amended by omitting sub-section (1) and inserting the following sub-section:

"(1) Subject to this section, a person shall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a fourth person (not being an employer of the first-mentioned person), where-

(a) the third person is, and the fourth person is not, a corporation and-

(i) the conduct would have or be likely to have the effect of causing-

(A) substantial loss or damage to the business of the third person or of a body corporate that is related to that person; or

(B) a substantial lessening of competition in any market in which the third person or a body corporate that is related to that person supplied or acquires goods or services; and

(ii) the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing-

(A) substantial loss or damage to the business of the fourth person; or

(B) a substantial lessening of competition in any market in which the fourth person acquires goods or services; or

(b) the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing-

(i) substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person; or

(ii) a substantial lessening of competition in any market in which the fourth person or a body corporate that is related to that person supplies or acquires goods or services.".

Section 5

After section 45D of the Principal Act the following section is inserted:

Prohibition of contracts, arrangements or understandings affecting supply or acquisition of goods or services

"45E. (1) Subject to this section, a person who has been accustomed, or is under an obligation, to supply goods or services to, or to acquire goods or services from, a second person shall not make a contract or arrangement, or arrive at an understanding, with a third person (being an organization of employees, an officer of such an organization, or another person acting for or on behalf of such an organization or officer) if the proposed contract, arrangement or understanding contains a provision that-

(a) has the purpose of preventing or hindering the first-mentioned person from supplying or continuing to supply any such goods or services to the second person or, as the case may be, from acquiring or continuing to acquire any such goods or services from the second person;

(b) has the purpose of preventing or hindering the first-mentioned person from supplying or continuing to supply any such goods or services to the second person except subject to a condition (not being a condition to which the supply of such goods or services by the first-mentioned person to the second person has previously been subject by reason of a provision of a contract existing between those persons) as to the persons to whom, as to the manner in which, or as to the terms on which, the second person may supply any goods or services; or

(c) has the purpose of preventing or hindering the first-mentioned person from acquiring or continuing to acquire any such goods or services from the second person except subject to a condition (not being a condition to which the acquisition of such goods or services by the first-mentioned person from the second person has previously been subject by reason of a contract existing between those persons) as to the persons to whom, as to the manner in which, or as to the terms on which, the second person may supply any goods or services.

"(2) Sub-section (1) does not apply in relation to a contract, arrangement or understanding that is in writing if the second person mentioned in that sub-section is a party to the contract, arrangement or understanding or has consented in writing to the contract or arrangement being made or the understanding being arrived at.

"(3) In a case where the person first mentioned in sub-section (1) is not a corporation, that sub-section applies only if the second person mentioned in that sub-section is a corporation.

"(4) Paragraph 4F (a) applies in relation to sub-section (1) of this section a s if sub-paragraph 4F (a) (ii) were omitted.

"(5) Subject to sub-section (6), a reference in this section to a person who has been accustomed to supply goods or services to a second person shall be construed as including a reference to-

(a) a regular supplier of any such goods or services to the second person;

(b) the latest supplier of any such goods or services to the second person; and

(c) a person who at any time during the immediately preceding period of 3 months supplied any such goods or services to the second person.

"(6) Where-

(a) goods or services have been supplied by a person to a second person pursuant to a contract between those persons under which the first- mentioned person was required over a particular period to supply such goods or services;

(b) that period has expired; and

(c) after the expiration of that period the second person has been supplied with such goods or services by another person or other persons and has not been supplied with such goods or services by the first-mentioned 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-mentioned person shall be deemed not to be a person who has been accustomed to supply such goods or services to the second person.

"(7) Subject to sub-section (8), a reference in this section to a person who has been accustomed to acquire goods or services from a second person shall be construed as including a reference to-

(a) a regular acquirer of any such goods or services from the second person;

(b) a person who, when he last acquired such goods or services, acquired them from the second person; and

(c) a person who at any time during the immediately preceding period of 3 months acquired any such goods or services from the second person.

"(8) Where-

(a) goods or services have been acquired by a person from a second person pursuant to a contract between those persons under which the first- mentioned person was required over a particular period to acquire such goods or services;

(b) that period has expired; and

(c) after the expiration of that period the second person has refused to supply such goods or services to the first-mentioned 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-mentioned person shall be deemed not to be a person who has been accustomed to acquire such goods or services from the second person.

"(9) If-

(a) a person has, whether before or after the commencement of this section, made a contract or arrangement, or arrived at an understanding, with another person; and

(b) by reason of a provision included in the contract, arrangement or understanding, the making of the contract or arrangement, or the arriving at the understanding, by the first-mentioned person contravened sub-section (1) or would have contravened that sub-section if this section had been in force at the time when the contract or arrangement was made, or the understanding was arrived at,

a person shall not give effect to that provision of the contract, arrangement or understanding.

"(10) In determining for the purposes of paragraph (9) (b) whether a contract or arrangement made, or understanding arrived at, before the commencement of this section would have contravened sub-section (1) if this section had been in force at the time when the contract or arrangement was made, or the understanding was arrived at, sub-section (2) shall be read as if the words 'that is in writing' and the words 'in writing' were omitted.

"(11) Nothing in this section affects the operation of any other provision of this Part.".

Section 6

After section 80 of the Principal Act the following section is inserted:

Stay of injunctions

"80AA. (1) Nothing in Division 5A of Part III of the Conciliation and Arbitration Act 1904 prevents the Court, pursuant to section 80, from granting an injunction, but where-

(a) the Court has, pursuant to that section, granted an injunction restraining a person from engaging in conduct that constitutes or would constitute-

(i) a contravention of a provision of section 45D or of section 45E;

(ii) attempting to contravene such a provision;

(iii) aiding, abetting, counselling or procuring a person to contravene such a provision;

(iv) inducing, or attempting to induce, a person, whether by threats, promises or otherwise, to contravene such a provision;

(v) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(vi) conspiring with others to contravene such a provision;

(b) there is a proceeding pending before the Australian Conciliation and Arbitration Commission under Division 5A of Part III of the Conciliation and Arbitration Act 1904, or before a court, tribunal or authority of a State or Territory exercising powers under a prescribed provision of a law of that State or Territory, in respect of a dispute relating to the conduct referred to in paragraph (a); 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), the Court may, on the application of a Minister or of a party to the proceeding before the Court in relation to the conduct, if it considers that to do so would be likely to facilitate the settlement of the dispute by conciliation and that in all the circumstances it would be just to do so, by order, stay the operation of the injunction.

"(2) An order under sub-section (1) may be of unlimited duration or may be expressed to have effect for a period specified in the order and may be varied or rescinded by the Court at any time.

"(3) Nothing in sub-section (1) affects the powers that the Court has apart from that sub-section.

"(4) The regulations shall not prescribe a provision of a law of a State or Territory for the purposes of this section unless the Governor-General is satisfied that the powers of the relevant court, tribunal or authority under that provision are equivalent to the powers of the Australian Conciliation and Arbitration Commission under section 88DC of the Conciliation and Arbitration Act 1904.

"(5) Where the proceeding referred to in sub-section (1) before the Australian Conciliation and Arbitration Commission, or before a court, tribunal or authority of a State or Territory, is terminated by reason that the Commission, or the court, tribunal or authority, has settled by conciliation the dispute to which the conduct in respect of which the injunction was granted relates, the Court shall 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.

"(6) In this section, 'injunction' includes an interim injunction.".

Section 7

Exceptions

Section 51 of the Principal Act is amended by inserting ", 45E" after "45D" in sub-section (2).

Section 8

Pecuniary penalties

Section 76 of the Principal Act is amended by adding at the end of sub-section (2) "or 45E".

Section 9

Power of Commission to grant authorizations

Section 88 of the Principal Act is amended by inserting after sub-section (7) the following sub-section:

"(7A) Subject to this Part, the Commission may, upon application by a person, grant an authorization to the person to engage in conduct to which section 45E would or might apply and, while such an authorization remains in force, that section does not apply in relation to the engaging in that conduct b y that person.".

Section 10

Determination of applications for authorizations

Section 90 of the Principal Act is amended by inserting "or (7A)" after "88 (7)" in sub-paragraph (ii) of paragraph (a) of sub-section (8).