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Competition and Consumer Act 2010 (Cth)

Section 93AB
Notification of collective bargaining

 

The provision

Notice to Commission - cartel provisions

(1A) A corporation that:

(a) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that:

(i) has the purpose; or

(ii) has or is likely to have the effect;

mentioned in subsection 44ZZRD(2); or

(b) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); or

(c) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that:

(i) has the purpose; or

(ii) has or is likely to have the effect;

mentioned in subsection 44ZZRD(2); or

(d) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c);

may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied.

Note 1: Subsection (6) deals with the form etc. of a collective bargaining notice.

Note 2: Section 93AD sets out when a collective bargaining notice comes into force.

Notice to Commission - per se and competition provisions

(1) A corporation that:

(a) has made, or proposes to make, a contract (the initial contract) containing a provision of the kind referred to in paragraph 45(2)(a); or

(b) proposes to give effect to a provision of a contract (the initial contract) where the provision is of the kind referred to in paragraph 45(2)(b);

may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied.

Note 1: Subsection (6) deals with the form etc. of a collective bargaining notice.

Note 2: Section 93AD sets out when a collective bargaining notice comes into force.

First - making of initial contract

(2) First, the corporation must have made, or propose to make, the initial contract with 1 or more persons (the contracting parties) about:

(a) the supply of particular goods or services to; or

(b) the acquisition of particular goods or services from;

another person (the target) by the corporation and the contracting parties.

Second - making of contracts with target

(3) Second, the corporation must reasonably expect that it will make 1 or more contracts with the target about:

(a) the supply of 1 or more of those goods or services to; or

(b) the acquisition of 1 or more of those goods or services from; the target by the corporation.

Third - price of contracts with target

(4) Third, the corporation must reasonably expect that:

(a) in the case where the corporation reasonably expects to make only 1 contract with the target - the price for the supply or acquisition of those goods or services under that contract; or

(b) in the case where the corporation reasonably expects to make 2 or more contracts with the target - the sum of the prices for the supply or acquisition of those goods or services under those contracts;

will not exceed $3,000,000, or such other amount as is prescribed by the regulations, in any 12 month period. The regulations may prescribe different amounts in relation to different industries.

Timing of reasonable expectation

(5) The corporation must have the reasonable expectation referred to in subsections (3) and (4):

(a) at the time of giving the collective bargaining notice; and

(b) if the initial contract has been made—at the time it was made.

Form of notice etc.

(6) To be valid, a collective bargaining notice must:

(a) be in a form prescribed by the regulations and contain the information required by the form; and

(b) be accompanied by any other information or documents prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the regulations.

Notice given by, or on behalf of, contracting persons

(7) A collective bargaining notice may be expressed to be given on behalf of one or more of the contracting parties, but only if those parties could have given the notice on their own behalf. If the notice is so expressed, then it is also taken to have been given by those parties.

When a notice may not be given

(8) A corporation may not give a collective bargaining notice in relation to a contract or proposed contract if:

(a) it has applied for an authorisation in relation to the contract or proposed contract; and

(b) the Commission has made a determination dismissing the application; and

(c) either:

(i) the Tribunal has made a determination on an application for a review of the Commission’s determination; or

(ii) the time for making such an application for review has ended without the making of an application.

Notice is invalid if given by union etc. on behalf of the corporation

(9) A notice given by a corporation under subsection (1) is not a valid collective bargaining notice if it is given, on behalf of the corporation, by:

(a) a trade union; or

(b) an officer of a trade union; or

(c) a person acting on the direction of a trade union.

Invalid collective bargaining notice

(10) If the Commission receives a purported collective bargaining notice that it considers is not a valid collective bargaining notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:

(a) stating that the person has not given a valid collective bargaining notice; and

(b) giving reasons why the purported collective bargaining notice does not comply with this Division.

(10A) The Commission must, as soon as practicable after receiving a valid collective bargaining notice, give a copy of the notice to the target.

Purpose/effect of a provision

(10B) Subsections 44ZZRD(6), (7), (8) and (10) apply for the purposes of paragraphs (1A)(a) and (c) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV.

Purpose of a provision

(10C) Subsections 44ZZRD(7), (9) and (11) apply for the purposes of paragraphs (1A)(b) and (d) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV.

Definition

(11) In this section:

business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

trade union means the following:

(a) an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009;

(b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory;

(c) an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment.

 

Legislative history

Forthcoming

 

Commentary

Forthcoming