Australian Competition & Consumer Commission v Flight Centre Travel Group Limited

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Flight Centre Travel Group Limited (Flight Centre) in the Federal Court of Australia. The dispute concerned allegations that Flight Centre had engaged in anti-competitive conduct by contravening section 47 of the *Competition and Consumer Act 2010* (Cth) (the Act), specifically by seeking to induce or encourage third parties to contravene section 47. The ACCC alleged that Flight Centre had engaged in a practice known as "no-poaching" agreements, where it sought to prevent airlines from hiring its employees.

The primary legal issue before the Full Federal Court was whether Flight Centre's conduct in seeking to enter into agreements with airlines that would prevent those airlines from employing Flight Centre's staff constituted a contravention of section 47(1) of the Act. Section 47 prohibits a corporation from engaging in conduct that has the purpose or effect of substantially lessening competition in a market. The ACCC contended that Flight Centre's actions had the purpose of substantially lessening competition in the market for the recruitment of travel agents.

The Full Federal Court, in its reasoning, focused on the purpose of Flight Centre's conduct. It found that Flight Centre's intention in approaching airlines was to prevent them from recruiting its employees, thereby reducing competition for those employees. The Court held that this conduct had the purpose of substantially lessening competition in the relevant market, as it restricted the supply of skilled travel agents and limited the ability of airlines to attract and retain such staff. The Court applied the principles of section 47 of the Act, which prohibits conduct that substantially lessens competition, and found that Flight Centre's "no-poaching" strategy fell within this prohibition.

The Full Federal Court upheld the primary judge's finding that Flight Centre had contravened section 47 of the *Competition and Consumer Act 2010* (Cth). The appeal by Flight Centre was dismissed.