Inquiry into the Workplace Relations Framework actu submission to the Productivity Commission

Trading restrictions in industrial agreements

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Trading restrictions in industrial agreements

The origin of the trading restrictions provisions of the Competition and Consumer Act was also a desire by the government of the day (i.e. 1980) making choices to limit the sphere of activity of organised labour, out of a perception that the secondary boycott provisions that had been introduced in 1977 did not go far enough.

The position then taken by the government was an ideological one and was in response to a specific national crisis: Union members had prevented a fuel delivery contracts from being fulfilled, a boycott campaign that targeted a non-union employer. The result was widespread fuel shortages in the Eastern States. The dispute was resolved by a member of the C&A Commission (acting on a questionable basis jurisdictionally) and resulted in fuel supplies being restored, including to the contractor against whom the boycott campaign had been targeted. Whilst the precise terms of the resolution are unknown (save that the contractor concerned discontinued his secondary boycott proceedings against the union), it seems inconceivable that all parties walked away from the discussions without having agreed to make some compromises. This result – a negotiated compromise - was one that the government of the day was not prepared to accept. It therefore legislated such that it became unlawful for a business to make a contract, arrangement or understanding with a union that prevented or hindered the continued supply or acquisition of goods and services or made such continued supply or acquisition subject to conditions.

To date, the trading restrictions provisions have not resulted in enterprise agreements, or negotiations for enterprise agreements, being met with a sanction. This fortuitous outcome has been more the result of technical considerations as a court is not a suitable body to pick a winner in the rather obvious policy collision at play between the underpinning objectives of industrial relations laws to facilitate collective bargaining, and the competing agenda to constrain the scope of collective bargaining in a manner that segments workers’ lawful collective power into less effective silos.

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