45DSecondary boycotts for the purpose of causing substantial loss or damage

45D  Secondary boycotts for the purpose of causing substantial loss or damage  (1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:  (a) that hinders or prevents:  (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or  (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and  (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.  (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.  (3) Subsection (1) applies if the fourth person is a corporation.  (4) Subsection (1) also applies if:  (a) the third person is a corporation and the fourth person is not a corporation; and  (b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person. 45DA  Secondary boycotts for the purpose of causing substantial lessening of competition  (1) In the circumstances specified in subsection (3), a person must not, in concert with a second person, engage in conduct:  (a) that hinders or prevents:  (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or  (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and  (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services.  (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.  (3) Subsection (1) applies if:  (a) the third person or the fourth person is a corporation, or both of them are corporations; and  (b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of one of those persons who is a corporation. 45DB  Boycotts affecting trade or commerce  (1) A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.  (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose. 45DC  Involvement and liability of employee organisations Certain organisations taken to be acting in concert  (1) If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections 45D, 45DA and 45DB:  (a) to engage in that conduct in concert with the participants; and  (b) to have engaged in that conduct for the purposes for which the participants engaged in it. Consequences of organisation contravening subsection 45D(1), 45DA(1) or 45DB(1)  (2) The consequences of an organisation of employees engaging, or being taken by subsection (1) to engage, in conduct in concert with any of its members or officers in contravention of subsection 45D(1), 45DA(1) or 45DB(1) are as set out in subsections (3), (4) and (5). Loss or damage taken to have been caused by organisation’s conduct  (3) Any loss or damage suffered by a person as a result of the conduct is taken, for the purposes of this Act, to have been caused by the conduct of the organisation. Taking proceedings if organisation is a body corporate  (4) If the organisation is a body corporate, no action under section 82 to recover the amount of the loss or damage may be brought against any of the members or officers of the organisation in respect of the conduct. Taking proceedings if organisation is not a body corporate  (5) If the organisation is not a body corporate:  (a) a proceeding in respect of the conduct may be brought under section 77, 80 or 82 against an officer of the organisation as a representative of the organisation’s members and the proceeding is taken to be a proceeding against all the persons who were members of the organisation at the time when the conduct was engaged in; and  (b) subsection 76(2) does not prevent an order being made in a proceeding mentioned in paragraph (a) that was brought under section 77; and  (c) the maximum pecuniary penalty that may be imposed in a proceeding mentioned in paragraph (a) that was brought under section 77 is the penalty applicable under section 76 in relation to a body corporate; and  (d) except as provided by paragraph (a), a proceeding in respect of the conduct must not be brought under section 77 or 82 against any of the members or officers of the organisation; and  (e) for the purpose of enforcing any judgment or order given or made in a proceeding mentioned in paragraph (a) that was brought under section 77 or 82, process may be issued and executed against the following property or interests as if the organisation were a body corporate and the absolute owner of the property or interests:  (i) any property of the organisation or of any branch or part of the organisation, whether vested in trustees or however otherwise held;  (ii) any property in which the organisation or any branch or part of the organisation has a beneficial interest, whether vested in trustees or however otherwise held;  (iii) any property in which any members of the organisation or of a branch or part of the organisation have a beneficial interest in their capacity as members, whether vested in trustees or however otherwise held; and  (f) if paragraph (e) applies, no process is to be issued or executed against any property of members or officers of the organisation or of a branch or part of the organisation except as provided in that paragraph. 45DD  Situations in which boycotts permitted Dominant purpose of conduct relates to employment matters—conduct by a person  (1) A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person. Dominant purpose of conduct relates to employment matters—conduct by employee organisation and employees  (a) an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:  (i) an organisation of employees; or  (ii) an officer of an organisation of employees; and  (b) the conduct is only engaged in by the persons covered by paragraph (a); and  (c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a); the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in the conduct. Dominant purpose of conduct relates to environmental protection or consumer protection  (3) A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if:  (a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and  (b) engaging in the conduct is not industrial action. Note 1: If an environmental organisation or a consumer organisation is a body corporate: (a) it is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption; and (b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption. Note 2: If an environmental organisation or a consumer organisation is not a body corporate: (a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the organisation as such); but (b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption. Meaning of industrial action—basic definition  (4) In subsection (3), industrial action means:  (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:  (i) the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or  (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or  (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or  (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or  (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work. For this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009. Meaning of industrial action—further clarification  (5) For the purposes of subsection (3):  (a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and  (b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions. Subsections (1), (2) and (3) do not protect people not covered by them  (6) In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct. Defences to contravention of subsection 45DB(1)  (7) In a proceeding under this Act in relation to a contravention of subsection 45DB(1), it is a defence if the defendant proves:  (a) that a notice in respect of the conduct concerned has been duly given to the Commission under subsection 93(1) and the Commission has not given a notice in respect of the conduct under subsection 93(3) or (3A); or  (b) that the dominant purpose for which the defendant engaged in the conduct concerned was to preserve or further a business carried on by him or her. Each person to prove defence  (a) a person engages in conduct in concert with another person; and  (b) the other person proves a matter specified in paragraph (7)(a) or (b) in respect of that conduct; in applying subsection 45DB(1) to the first person, ignore the fact that the other person has proved that matter. Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions under this Act in respect of industrial action that is protected action for the purposes of that section. 45E  Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services Situations to which section applies  (1) This section applies in the following situations:  (a) a supply situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or  (b) an acquisition situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person). Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations. Note : For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7). Prohibition in a supply situation  (2) In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:  (a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or  (b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:  (i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and  (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services. Prohibition in an acquisition situation  (3) In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:  (a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or  (b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition:  (i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and  (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services. No contravention if second person gives written consent to written contract etc.  (4) Subsections (2) and (3) do not apply to a contract, arrangement or understanding if it is in writing and was made or arrived at with the written consent of the second person. Meaning of accustomed to supply  (5) In this section, a reference to a person who has been accustomed to supply goods or services to a second person includes (subject to subsection (6)):  (a) a regular supplier of such goods or services to the second person; or  (b) the latest supplier of such goods or services to the second person; or  (c) a person who, at any time during the immediately preceding 3 months, supplied such goods or services to the second person. Exception to subsection (5)  (a) goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and  (b) the period has ended; and  (c) after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first 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 person is not to be taken to be a person who has been accustomed to supply such goods or services to the second person. Meaning of accustomed to acquire  (7) In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)):  (a) a regular acquirer of such goods or services from the second person; or  (b) a person who, when last acquiring such goods or services, acquired them from the second person; or  (c) a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person. Exception to subsection (7)  (a) goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and  (b) the period has ended; and  (c) after the end of the period, the second person has refused to supply such goods or services to the first 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 person is not to be taken to be a person who has been accustomed to acquire such goods or services from the second person. 45EA  Provisions contravening section 45E not to be given effect   A person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person:  (a) contravened subsection 45E(2) or (3); or  (b) would have contravened subsection 45E(2) or (3) if:  (i) section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and  (ii) the words “is in writing and” and “written” were not included in subsection 45E(4). 45EB  Sections 45D to 45EA do not affect operation of other provisions of Part   Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part.