The Australian Competition and Consumer Commission
(ACCC) has said that it will target secondary
boycotts in 2014 as part of its regulatory mandate. ACCC Chairman
Rod Sims described secondary boycotts as "extremely
detrimental to businesses, consumers and the competitive
process", and said the ACCC will investigate secondary
boycotts whenever it becomes aware of them.
The Competition and Consumer Act 2010 (Cth)
(CCA) contains a statutory prohibition on
secondary boycotts. This makes it illegal for a union to call a
"sympathy strike", where a union agrees to help another
union in its dispute with an employer by commencing industrial
action against the employer's suppliers or customers. The CCA
prohibition also extends to organised consumer boycotts of an
employer because that employer is engaged in an industrial dispute.
Employers at risk of secondary strikes or industrial action-related
consumer boycott will welcome the ACCC's statement that
secondary boycotts will be an enforcement priority for the ACCC in
Although the ACCC is independent of the Federal Government, the
enforcement of secondary boycott prohibitions tends to increase
under conservative Coalition Governments because the scope of the
prohibitions is generally broadened. Conversely, when the Labor
Party is in power, the provisions are generally narrowed.
Consistent with this cycle of expansion and contraction, the
Coalition Government has announced it is re-examining the secondary
boycott laws with a view to strengthening them. Any changes are
more likely to target secondary boycotts by unions or consumer
groups motivated by environmental issues rather than employers'
involvement in industrial disputes. However, it would not be
outside of the realm of possibility for the Coalition Government to
further expand the scope of the prohibitions applying in the
context of industrial action by unions.
It is important to note that the types of conduct that amount to
industrial action as defined by the Fair Work Act are unlikely to
also constitute secondary boycotts under the CCA. However, it is
often the case that in periods during which unions and employees
are engaging in or considering industrial action, they will also be
more likely to engage in conduct that may breach the secondary
boycott prohibitions under the CCA.
While protected industrial action may provide immunity for
conduct in so far as it amounts to industrial action and meets the
additional requirements found in Part 3-3 of the Fair Work Act, it
will not extend to protect unions from scrutiny in relation to
conduct that does not fall within that narrow definition, such as
when unions reach an understanding with suppliers of a target
employer which hinders or prevents them from supplying that
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).