What’s the point of the ACCC?

I know a number of Cats hold grave reservations about the ongoing role of the ACCC. When it focuses on preventing consumers from buying cheap petrol and milk and focuses on online restaurant reviews, you really have to wonder.

But here’s the thing: there is a classic example of a secondary boycott that is covered under the Competition and Consumer Act 2010 (Section 45D) affecting Boral in Victoria and all the Chairman of the ACCC can say (pathetically) is: ‘we don’t have the evidence’.

Here is Section 45D of the Competition and Consumer Act 2010 (unchanged from TPA):

 (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.

Here’s a tip, Rod: go and collect the evidence.  Get your staff to leave their desks and wander down the Melbourne CBD building sites and get the evidence.  Take some members of the police with you, if you feel a bit afraid (which you should), although the police are probably part of the problem.

Mike Kane, new CEO of Boral, is brave in talking out as the CFMEU tried to run Grocon out of town by targetting concrete supplier, Boral. The ACCC just sits back and watches. And the courts seem no better in being able to enforce their orders, which raises the question of whether the police are doing their job.

Here is the story:

Boral chief executive Mike Kane has called members of one of Australia’s biggest unions “cowards and bullies” in the building industry’s most outspoken attack so far on union thuggery.

In a rallying call for big business to take a harder line against secondary boycotts, Mr Kane called on authorities to clamp down on union tactics designed to intimate contractors into blackballing his company’s products.

Boral has been pulled into the ­dispute between the powerful ­Construction Forestry Mining and Energy Union and building group ­Grocon on sites in central Melbourne.

“These are cowards and bullies and they have been allowed to do this for a long time in this society. At some stage business needs to stand up and say this is enough,” Mr Kane told theFinancial Review JPMorgan Chanticleer Lunch.

Mr Kane said Boral said it had ­effectively not been able to pour concrete in Melbourne’s central business district for a year because the union strong-armed contractors and his employees.

The Sydney lunch of business exec­utives burst into applause at Mr Kane’s comments, including former Business Council of Australia president Graham Bradley. They may increase pressure on Labor to support a Coalition plan to toughen workplace regulation following allegations of corruption and thuggery in the construction industry. Employment Minister Eric Abetz welcomed the comments and reiterated calls for Labor to pass legislation before the Senate restoring the construction industry watchdog and tougher penalties for corrupt union leaders.

“This principled corporate citizenry has been sadly lacking in the past. I commend Boral for calling this conduct exactly what it is and I invite Mr [Bill] Shorten to do the same,” Senator Abetz said.

The CFMEU declined to comment, saying the Boral matter was before the courts. Boral has obtained three injunctions against the union which it says have failed to stop the union’s actions. The injunctions are now going to contempt hearings against the CFMEU. Boral fears legal action could be dragged out without a resolution.

“In one isolated situation in the CBD of Melbourne an institution has managed to threaten, coerce and intimidate our employees first and ultimately our customers so they will no longer order concrete from us in the CBD based on the explicit ban of Boral by the CFMEU,” Mr Kane said. “They seem to have more power than any other entity in this country. As a society someone needs to step up. We need to step up and say we can’t have this. It can’t be allowed to continue.”

Transfield Services chairman Diane Smith-Gander said industrial relations needed an overhaul.

“We have to find a way to bring our industrial relations system into this century. It is mired way back there [in the 19th century]” she told the lunch.

The government has appointed a royal commission into the union movement following allegations of corruption and thuggery in construction.

Australian Competition and Consumer Commission chairman Rod Sims confirmed he had looked into the Boral case but there was not enough evidence to prosecute.

“I don’t think there is any deficiency in the law, there is just an issue in gathering evidence to get these things to courts,” he said.

He said investigating these types of allegations was a priority for the ACCC but the matter could not go to court without the required evidence.

Mr Kane said the ACCC was constrained by existing legislation and was having trouble gathering evidence because Boral’s contractors were too intimidated to talk to the competition watchdog.

Boral’s dispute with the CFMEU extends to February last year when the union tried to appoint health and safety officials on Grocon’s sites in Melbourne. Boral opposed the move which it feared would give the union effective control of the sites and it won injunctions in February and April last year for the CFMEU to stop interfering in its business. There are three injunctions in place against the CFMEU.

Boral has said the CFMEU’s tactics involved union officials stopping its trucks from entering a site or harassing workers. Delay tactics meant Boral workers could not pour the concrete before it set included paperwork checks and inspection checklists.

Once Boral employees could access the sites, sources said the campaign moved onto Boral’s customers who were told not to use the company’s products.

The FairWorkBuilding and Construction inspectorate has referred the Boral case to the ACCC but said it could take no further action.

“The FWBC does not have jurisdiction to investigate this kind of alleged unlawful activity. We have to refer these matters to the ACCC,” a spokeswoman said.

The dispute has so far been isolated to Melbourne’s CBD.


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12 Responses to What’s the point of the ACCC?

  1. Dan

    Bill Kelty acted as trustee for former ACCC head Graeme Samuel with his monumental DFO fuck up. (To be fair Michael Kroger’s brother was also a trustee.)

    Now the ACCC says it can’t do anything about unions with out concrete evidence.

    Veering off to starboard……

    The potential collapse of the DFO empire is not the first flashpoint in the relationship between Mr Samuel and interests associated with Mr Goldberger and Mr Wieland. Sources close to the ACCC said the DFO founders, valued earlier this year at a combined $625m, fell out with Mr Samuel in 2004, over the commission’s pronouncement that “shopper docket” schemes did not violate competition laws. The schemes enable consumers to buy discounted petrol if they spend more than a threshold amount on groceries at Coles or Woolworths. When Woolworths appointed Caltex as its exclusive supplier of petrol, it cut out the Liberty Oil business owned by Mr Goldberger and Mr Wieland.

    Is anybody awake at the ACCC? Or are they cheque-cashing zombies scratching each other’s backs?

  2. Baldrick

    Here’s a tip, Rod: go and collect the evidence. Get your staff to leave their desks …

    Leave their desks!!! Oh the humanity!

  3. AK

    Need some concrete evidence? Boral should have plenty…

  4. Scott

    Can’t do anything without concrete evidence. Very clever , Dan!

  5. .

    Here’s a tip, Rod: go and collect the evidence. Get your staff to leave their desks and wander down the Melbourne CBD building sites and get the evidence. Take some members of the police with you, if you feel a bit afraid (which you should), although the police are probably part of the problem.

    Last time they did that they realised they were Quixotic fantasists. No evidence of petrol price collusion. Nearly 14 years ago.

  6. Empire Strikes Back

    We pay for a plethora of federal regulatory agencies that are either unable or unwilling to enforce the law they claim to uphold. So let’s eradicate them and save a monty.

    It pains me to suggest it, but perhaps an AFP Special Branch is the solution to enforcement? The secondary boycott provisions are “good” laws and should be enforced.

  7. johanna

    They have a consistent track record of chasing after phantoms or trivia while blatant breaches go unaddressed. They regularly lose their court cases, whether through incompetent choice of cases or incompent prosecution of them I am not sure (it’s a bit technical for this reader), but their track record is so bad that we would probably be better off without them, saving taxpayers a significant swag of dosh.

  8. Grumbles

    To anyone from Boral reading this, more than happy to work for you guys and put a stop to this, bullies are the easiest people to bully and also the most satisfying to kick in the head

  9. dragnet

    Where’s Tim Bristow when you need him?

  10. Squirrel

    The contrast is stark and says so much about the priorities and the world view of the left – they are in meltdown about the prospect that laws might be changed which will make it more difficult for those with the means and the motivation to take legal action against someone who slurs them on racial grounds, but they are perfectly relaxed about what is going on in the building industry – “nothing to see here, what’s the problem?”

  11. yackman

    Spot-on once again Judith.
    Isnt this the area of law where Peter Costello made a name for himself?
    The CEO being of Nth American experience may mean a resolute approach if the Board has the guts to back the CEO.

  12. Nato

    Good call. Unions should not get away with this crap.

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