Gadens acted for Hutchinson Builders (Hutchinson) in the High Court of Australia in a matter that clarifies the meaning of an 'understanding' under Australia's competition laws.
The Australian Competition and Consumer Commission (ACCC) appealed a unanimous Full Court decision, arguing that Hutchinson had reached an 'understanding' with the CFMEU when it terminated a subcontractor following industrial pressure.
Gadens represented Hutchinson throughout the proceedings, which involved complex questions at the intersection of competition law and industrial pressure. On 2 April 2025, the High Court (4:1) dismissed the ACCC's appeals with costs in Australian Competition and Consumer Commission v J Hutchinson Pty Ltd, Australian Competition and Consumer Commission v Construction, Forestry and Maritime Employees Union [2025] HCA 10.
The decision provides greater certainty for businesses managing supplier and industrial relationships. The Court confirmed that an 'understanding' requires more than a party acting in response to pressure. There must be communicated assent—express or tacit—that demonstrates a commitment between the parties. That assent must be distinct from, and precede, the conduct said to give effect to the understanding. Simply yielding to a threat, without more, is not enough.
Lead Partner Mitchell Byram said:
“This decision provides a clearer framework for assessing conduct under section 45E. It offers practical guidance for businesses responding to commercial or industrial pressure, helping them act with confidence while managing competition law risk.”
Published
30 April 2025