The Full Federal Court has upheld appeals by the CFMEU and J Hutchinson Pty Ltd against a prior judgement favouring the ACCC. 

The case centred around allegations of a boycott against a waterproofing subcontractor at the Brisbane Southpoint A apartments site in 2016.

The appeals' success overturns the initial ruling that accused CFMEU and Hutchinson of colluding to exclude the subcontractor, which the ACCC argued was anti-competitive. 

The Full Court found the evidence insufficient to prove an agreement between the union and the construction firm to terminate the subcontractor's services to avert potential conflicts or industrial action by the CFMEU.

“We brought these enforcement proceedings because we believed that the arrangement between the union and the builder prevented a waterproofing subcontractor from supplying its services,” said ACCC Chair Gina Cass-Gottlieb.

She has highlighted the serious nature of boycott conduct and its potential to stifle competition and inflate costs within the construction sector. 

Cass-Gottlieb also warned businesses and unions about the legality of such actions, emphasising the ACCC's commitment to enforcing against anti-competitive conduct.

The ACCC is currently deliberating the Full Court's judgement. 

This case has significant implications, especially considering the reputations of Hutchinson, one of Australia's largest privately-owned construction companies, and the CFMEU, a prominent trade union representing various industry workers. 

The legal battle shows the complexities of enforcing competition laws within the construction industry and the challenges of proving anti-competitive agreements.

Initially, on 14 February 2022, the Federal Court had found Hutchinson and the CFMEU in violation of the Competition and Consumer Act by entering into and acting upon the boycott agreement. 

The Court also noted the CFMEU's role in inducing Hutchinson's contraventions through threats of conflict or industrial action. 

Following this, on 30 August 2022, penalties totaling $1.35 million were imposed on both entities, which have since been paid.