2 April 2025 – The High Court of Australia has dismissed an appeal by the Australian Competition and Consumer Commission (ACCC) against a Federal Court decision that cleared the Construction, Forestry and Maritime Employees Union (CFMEU) and major construction firm J Hutchinson Pty Ltd of engaging in an unlawful boycott.
The ACCC had alleged that the CFMEU and Hutchinson entered into an anti-competitive arrangement in 2016 to exclude a waterproofing subcontractor from working on the Southpoint A apartments project in Brisbane. The original trial judge agreed, finding that such conduct breached the Competition and Consumer Act by constituting a secondary boycott.
However, in 2022, the Full Federal Court overturned that ruling, accepting appeals from both the CFMEU and Hutchinson. Today’s High Court decision affirms that reversal, rejecting the ACCC’s attempt to reinstate the earlier findings of anti-competitive conduct.
ACCC Chair Gina Cass-Gottlieb acknowledged the decision, stating: “We took this appeal because the issue of what is needed to prove an arrangement or understanding is an important one for the enforcement of our competition laws. We respect the High Court’s ruling, which reflects the complexity of enforcing these provisions.”
Despite the setback, Cass-Gottlieb emphasized the ACCC’s ongoing commitment to pursuing unlawful conduct that undermines market competition. “Boycotts of this kind can harm the economy, individual businesses, and consumers,” she said.
The case revolved around alleged breaches of sections 45E and 45EA of the Competition and Consumer Act, which prohibit arrangements that restrict a business’s ability to acquire goods or services — a practice known as a secondary boycott.
In 2020, the ACCC initiated proceedings against Hutchinson and the CFMEU. In 2022, both were initially found liable and fined $600,000 and $750,000 respectively, but those penalties were overturned following the successful appeal to the Full Federal Court.
The High Court’s ruling now brings the legal battle to a close.
