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 2014.
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 employer.
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.
