Application by Independent Contractors Australia - [2015] ACompT 1

AUSTRALIAN COMPETITION TRIBUNAL
Application by Independent Contractors Australia
[2015] ACompT 1

Citation: Application by Independent Contractors Australia [2015] ACompT 1

Review from: Australian Competition and Consumer Commission Authorisation

File number: ACT 3 of 2014

Tribunal: MANSFIELD J, PRESIDENT
RC DAVEY, MEMBER
R STEINWALL, MEMBER

Date of decision: 21 January 2015

Catchwords: TRADE PRACTICES – application for review of a determination to authorise collective bargaining – standing of the applicant – whether applicant has a “sufficient interest” – the applicant is a membership-based not for profit association and is a general representative of small business and independent contractors – the authorisation is geographically confined and authorises limited conduct – the applicant does not have members who would be affected by the authorisation – the applicant does not have any actual commercial interests which are or may be affected by the authorisation

Legislation:
Associations Interpretation Act 1981 (Vic)
Trade Practices Act 1974 (Cth)
Country Fire Authority Act 1958 (Vic)
Fair Work Act 2009 (Cth)
Gas Pipelines Access (South Australia) Act 1997 (SA)

Cases cited:
Re Fortescue Metals Group Ltd (2006) 203 FLR 28 cited
Application by Wylie Steel Pty Ltd for review of grant of authorisation to Broken Hill Pty Co Ltd [1980] ATPR 40-170 referred to
Broken Hill Pty Ltd v Trade Practices Tribunal (1980) 47 FLR 385 cited
Re Application by PK Wakeman for a review of the Determination of the Australian Competition and Consumer Commission in relation to the Alliance Agreement [1998] ACompT 1 cited
Re Application by Michael Jools, President of the New South Wales Taxi Drivers Association [2005] ACompT 4 cited
Re Qantas Airways Ltd [2003] ACompT 4 cited
United Firefighters Union of Australia v Country Fire Authority (2014) 218 FCR 210 referred to
Re Queensland Cooperative Milling Association Ltd (Proposed Merger) (1976) 8 ALR 481 referred to
Telstra Corporation v Australian Competition Tribunal [2009] FCAFC 23 referred to
Re Application by Orica IC Assets Ltd; re Moomba to Sydney Gas Pipeline (No 2) [2004] ACompT 2 cited
Re Telstra Corporation [2001] ACompt 1 distinguished

Date of hearing: Heard on the papers

Date of last submissions: 22 December 2014

Place: Adelaide

Category: Catchwords

Number of paragraphs: 81

Counsel for the Applicant: J Findley

Solicitor for the Applicant: Christopher Levingston & Associates

Counsel for the Australian Competition and Consumer Commission: G Foster

Solicitor for the Australian Competition and Consumer Commission: Baker & McKenzie

Counsel for the Transport Workers Union of Australia: M Gibian

Solicitor for the Transport Workers Union of Australia: Transport Workers Union of Australia, Queensland Branch

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 3 OF 2014

RE:
APPLICATION FOR REVIEW OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AUTHORISATION A91427 UNDER S 101 OF THE COMPETITION AND CONSUMER ACT 2010 (CTH)

BY:
INDEPENDENT CONTRACTORS AUSTRALIA
Applicant

JUDGES:

MANSFIELD J, PRESIDENT
RC DAVEY, MEMBER
R STEINWALL, MEMBER

DATE OF ORDER:

21 JANUARY 2015

WHERE MADE:

ADELAIDE

THE TRIBUNAL DETERMINES THAT:
1.Combined Small Business Alliance of WA (Inc) is refused leave to intervene in the application.
2.The application by Independent Contractors…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACompT 1
Decision Date: 21 January 2015

CaseChat Overview and Summary

Independent Contractors Australia sought to review a determination by the Australian Competition and Consumer Commission to authorise collective bargaining. The case was heard by the Competition and Consumer Tribunal. The central issue was whether the applicant had sufficient standing to bring the review, given that it was a membership-based not-for-profit association representing small businesses and independent contractors. The authorisation in question was geographically limited and pertained to specific conduct, and the applicant did not have members directly affected by the authorisation. Additionally, the applicant had no actual commercial interests that were or could be impacted by the authorisation.

The Tribunal examined the statutory criteria for standing, focusing on whether Independent Contractors Australia had a "sufficient interest" in the matter. The Tribunal concluded that the applicant did not meet the necessary threshold for standing as it lacked direct members who would be affected by the authorisation. Furthermore, the applicant's lack of any actual commercial interests that could be impacted by the authorisation further undermined its standing. Consequently, the Tribunal ruled that the applicant did not have sufficient standing to challenge the authorisation.

In light of the Tribunal's findings, it dismissed the application by Independent Contractors Australia to review the authorisation. The Tribunal also ruled that Combined Small Business Alliance of WA (Inc) was not granted leave to intervene in the application. The decision was final, and no further appeal or review was available regarding these determinations.

Orders

Orders of the court

THE TRIBUNAL DETERMINES THAT:

1. Combined Small Business Alliance of WA (Inc) is refused leave to intervene in the application.

2. The application by Independent Contractors Australia to review the Authorisation of the Australian Competition and Consumer Commission A91427 is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Application by Independent Contractors Australia [2015] ACompT 1
Review from:	Australian Competition and Consumer Commission Authorisation
File number:	ACT 3 of 2014
Tribunal:	MANSFIELD J, PRESIDENT RC DAVEY, MEMBER R STEINWALL, MEMBER
Date of decision:	21 January 2015
Catchwords:	TRADE PRACTICES – application for review of a determination to authorise collective bargaining – standing of the applicant – whether applicant has a “sufficient interest” – the applicant is a membership-based not for profit association and is a general representative of small business and independent contractors – the authorisation is geographically confined and authorises limited conduct – the applicant does not have members who would be affected by the authorisation – the applicant does not have any actual commercial interests which are or may be affected by the authorisation
Legislation:	Associations Interpretation Act 1981 (Vic) Trade Practices Act 1974 (Cth) Country Fire Authority Act 1958 (Vic) Fair Work Act 2009 (Cth) Gas Pipelines Access (South Australia) Act 1997 (SA)
Cases cited:	Re Fortescue Metals Group Ltd (2006) 203 FLR 28 cited Application by Wylie Steel Pty Ltd for review of grant of authorisation to Broken Hill Pty Co Ltd [1980] ATPR 40-170 referred to Broken Hill Pty Ltd v Trade Practices Tribunal (1980) 47 FLR 385 cited Re Application by PK Wakeman for a review of the Determination of the Australian Competition and Consumer Commission in relation to the Alliance Agreement [1998] ACompT 1 cited Re Application by Michael Jools, President of the New South Wales Taxi Drivers Association [2005] ACompT 4 cited Re Qantas Airways Ltd [2003] ACompT 4 cited United Firefighters Union of Australia v Country Fire Authority (2014) 218 FCR 210 referred to Re Queensland Cooperative Milling Association Ltd (Proposed Merger) (1976) 8 ALR 481 referred to Telstra Corporation v Australian Competition Tribunal [2009] FCAFC 23 referred to Re Application by Orica IC Assets Ltd; re Moomba to Sydney Gas Pipeline (No 2) [2004] ACompT 2 cited Re Telstra Corporation [2001] ACompt 1 distinguished
Date of hearing:	Heard on the papers
Date of last submissions:	22 December 2014
Place:	Adelaide
Category:	Catchwords
Number of paragraphs:	81
Counsel for the Applicant:	J Findley
Solicitor for the Applicant:	Christopher Levingston & Associates
Counsel for the Australian Competition and Consumer Commission:	G Foster
Solicitor for the Australian Competition and Consumer Commission:	Baker & McKenzie
Counsel for the Transport Workers Union of Australia:	M Gibian
Solicitor for the Transport Workers Union of Australia:	Transport Workers Union of Australia, Queensland Branch

RE:	APPLICATION FOR REVIEW OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AUTHORISATION A91427 UNDER S 101 OF THE COMPETITION AND CONSUMER ACT 2010 (CTH)
BY:	INDEPENDENT CONTRACTORS AUSTRALIA Applicant

JUDGES:	MANSFIELD J, PRESIDENT RC DAVEY, MEMBER R STEINWALL, MEMBER
DATE OF ORDER:	21 JANUARY 2015
WHERE MADE:	ADELAIDE