Industrial (Commercial Practices) Act 1984 (Qld)

1467 (1 ueenst nb F'tMO ANNO TRICESIMO TERTIO ELIZABETHAE SECUNDAE REGINAE No. 115 of 19 An Act to make provision with respect to conduct injurious to trade or business and protection of the supply or acquisition of goods or services and for related purposes [ASSENTED TO 18TH DECEMBER, 1984]

1468 Industrial (Commercial Practices) Act 1984, No. 115 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART I-PRELIMINARY 1. Short title . This Act may be cited as the Industrial (Commercial Practices) Act 1984. 2. Commencement . (1) Section 1 and this section shall commence on the date this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), the provisions of this Act shall commence on a date appointed by Proclamation. In this Act the date so appointed is referred to as the commencement of this Act. 3. Arrangement . This Act is arranged in Parts as follows:- PART I-PRELIMINARY ( ss. 1-5); PART II-INTERFERENCE WITH TRADE AND COMMERCE (ss. 6-12); PART 111-INTERFERENCE WITH SUPPLY OR ACQUISITION OF GOODS OR SERVICES ( ss. 13-19); PART IV-ENFORCEMENT AND REMEDIES (ss. 20-32). 4. Interpretation . In this Act, unless the contrary intention appears- "acquire" includes- (a) in relation to goods-acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase; and (b) in relation to services - accept; "authority of the State" means (a) a body corporate established for a purpose of the State by or under an Act; or (b) an incorporated company in which the Crown in right of the State or a body corporate referred to in paragraph (a) has a controlling interest; "business" includes a business not carried on for profit; "conduct" includes a refusal to do any act or thing or refraining (otherwise than inadvertently) from doing any act or thing; "Court" means the Supreme Court of Queensland and a Judge thereof, "Minister" means the Minister for Employment and Industrial Affairs or other Minister of the Crown charged with the administration of this Act and includes a Minister of the

Industrial (Commercial Practices) Act 1984, No. 115 1469 Crown for the time being performing the duties of the Minister; "person" includes the Crown in right of Queensland and any authority of the State; "trade or commerce" means trade or commerce within Queensland or between places in Queensland and places outside Queensland. 5. Act subject to legislative power of State . This Act shall be read and construed so as not to exceed the legislative power of the State, to the intent that where any provision thereof would, but for this provision, be construed as being in excess of that power or as being invalid by reason of inconsistency with a law of the Commonwealth it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power or to which it can operate without inconsistency with a law of the Commonwealth. PART II-INTERFERENCE WITH TRADE AND COMMERCE 6. Interference with supply of goods or services prohibited. Subject to this Part, a person shall not, either alone or in concert with another, engage in conduct that hinders or prevents the supply of goods or services to another person (not being an employer of the first-mentioned person) or the acquisition of goods or services by another person (not being an employer of the first-mentioned person) where the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing- (a) substantial loss or damage to the business of that other person or any other person; or (b) a substantial lessening of competition in any market in which that other person acquires goods or services. 7. Interference with opportunity to trade prohibited. Subject to this Part, a person shall not, either alone or in concert with another, engage in conduct for the purpose, and having or likely to have the effect, of hindering or preventing another person (not being an employer of the first-mentioned person) in or from engaging in trade or commerce. 8. Cases not within ss. 6 and 7. (1) A person shall not be taken to contravene or to be involved in a contravention of section 6 or 7 by engaging in conduct where- (a) the dominant purpose for which the conduct is engaged in is substantially related to- (i) the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person; or (ii) an employer of that person having terminated or taken action to terminate the employment of that person or of another person employed by that employer; or

1470 Industrial (Commercial Practices) Act 1984, No. 115 (b) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person), that is to say- (i) an association or associations of employees or any officer or officers of such an association or both such an association or associations and such an officer or officers; and (ii) an employee or two or more employees who are employed by the one employer, the dominant purpose for which the conduct is engaged in is substantially related to- (iii) the remuneration, conditions of employment, hours of work or working conditions of the employee or of any of the employees referred to in sub-paragraph (ii); or (iv) the employer of the employee or of the employees referred to in sub-paragraph (ii) having terminated or taken action to terminate the employment of any of his employees. (2) For the purposes of subsection (1), where the purpose of conduct is to induce an employer to adopt or contribute to a superannuation scheme for the benefit of employees that is under one management in preference to another comparable superannuation scheme that is under a wholly or substantially different management, that conduct shall be taken not to be substantially related to the remuneration, conditions of employment or working conditions of any person. (3) For the purposes of subsection (1), where the purpose of conduct is to induce- any person or persons to become a member or members of an association of employees; any person or persons to become a member or members of one association of employees rather than another such association; or preference in employment to be given to members of an association of employees that conduct shall be taken not to be substantially related to the conditions of employment or working conditions of any person, except where membership of an association of employees or a particular association of employees is a condition of a contract of employment between the employer and employee in question. 9. Operation of s. 8. The application of section 6 or 7 in relation to a person in respect of his engaging in conduct in concert with another person is not affected by reason that section 8 operates to preclude the other person from being taken to contravene or to be involved in a contravention of section 6 or 7 in respect of that conduct. 10. Associations deemed involved in conduct . If two or more persons (in this section referred to as the participants) each of whom is a member or officer of the same association of employees (being an association

Industrial (Commercial Practices) Act 1984, No. 115 1471 that exists or is carried on for the purpose or for purposes that include the purpose of furthering the interests of its members in relation to their employment) engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with other persons, the association shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants and so to engage in that conduct for the purpose or purposes for which that conduct is engaged in by the participants unless it is shown that the association took all reasonable steps to prevent the participants from engaging in that conduct. 11. Provisions concerning associations ' liability. Where an association of employees engages or is deemed pursuant to section 10 to engage in conduct in concert with members or officers of the association in contravention of section 6 or 7- (a) any loss or damage suffered by a person as a result of the conduct shall be deemed to have been caused by the conduct of the association; (b) if the association is a body corporate, action to recover the amount of loss or damage thereby suffered by any person shall not be brought against any of the members or officers of the association; (c) if the association is not a body corporate- (i) a proceeding such as is referred to in section 28 or an action to recover damages in respect of the conduct may be instituted against any officer or officers of the association as a representative or representatives of the members of the association and a proceeding so instituted shall be deemed to be a proceeding against all the persons who were members of the association at the time when the conduct was engaged in; (ii) the maximum pecuniary penalty that may be imposed in a proceeding mentioned in sub-paragraph (i) that is instituted under section 28 is the penalty prescribed by that section in relation to a body corporate; (iii) except as provided by sub-paragraph (i), a proceeding such as is referred to in section 28 or an action to recover damages in respect of the conduct shall not be instituted against any of the members or officers of the association; and (iv) for the purpose of enforcing a judgment or order given or made in a proceeding mentioned in sub-paragraph (i) that is instituted, process may be issued and executed against any property of the association or of any branch or part of the association or any property in which the association or any branch or part of the association has or any member of the association or of a branch or part of the association has in his capacity as such a member a beneficial interest, whether vested in trustees or otherwise

1472 Industrial (Commercial Practices) Act 1984, No. 115 held, as if the association were a body corporate and the absolute owner of the property or interest, but no process shall be issued or executed against any other property of members or against any property of officers of the association or of a branch or part of the association. 12. Establishment of purpose . For the purposes of this Part, a person shall be deemed to have engaged or to engage in conduct for a particular purpose if- (a) the person engaged or engages in the conduct for purposes that included or includes that purpose; and (b) that purpose was or is a substantial purpose. PART III-INTERFERENCE WITH SUPPLY OR ACQUISITION OF GOODS OR SERVICES 13. Prohibition of certain arrangements . (1) Subject to this Part, a person who has been accustomed or is under an obligation to supply goods or services to or to acquire goods or services from a second person shall not make a contract or arrangement, or arrive at an understanding, with a third person (being an association of employees, an officer of such an association or another person acting for and on behalf of such an association or officer) if the proposed contract, arrangement or understanding contains a provision that- (a) has the purpose of preventing or hindering the,first-mentioned person from supplying or continuing to supply any such goods or services to the second person or, as the case may be, from acquiring or continuing to acquire any such goods or services from the second person; (b) has the purpose of preventing or hindering the first-mentioned person from supplying or continuing to supply any such goods or services to the second person except subject to a condition (not being a condition to which the supply of such goods or services by the first-mentioned person to the second person has previously been subject by reason of a provision of a contract existing between those persons) as to the persons to whom, the manner in which or the terms on which the second person may supply any goods or services; or (c) has the purpose of preventing or hindering the first-mentioned person from acquiring or continuing to acquire any such goods or services from the second person except subject to a condition (not being a condition to which the acquisition of such goods or services by the first-mentioned person from the second person has previously been subject by reason of a provision of a contract existing between those persons) as to the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.

Industrial (Commercial Practices) Act 1984, No. 115 1473 (2) Subsection (1) does not apply in relation to a contract, arrangement or understanding that is in writing if the second person is a party to the contract, arrangement or understanding or has consented in writing to its being made or arrived at. 14. Certain persons deemed to be accustomed suppliers . Subject to section 15, a reference in section 13 to a person who has been accustomed to supply goods or services to a second person shall be construed as including a reference to- a regular supplier of any such goods or services to the second person; the latest supplier of any such goods or services to the second person; and a person who at any time during the immediately preceding period of three months supplied any such goods or services to the second person. 15. Certain persons deemed not to be accustomed suppliers . Where- (a) goods or services have been supplied by a person to a second person pursuant to a contract between those persons under which the first-mentioned person was required over a particular period to supply such goods or services; (b) that period has expired; and (c) after the expiration of that period the second person has been supplied with such goods or services by another person or other persons and has not been supplied with such goods or services by the first-mentioned person, then, for the purposes of the application of section 13 or 14 in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the first-mentioned person shall be deemed not to be a person who has been accustomed to supply such goods or services to the second person. 16. Certain persons deemed to be accustomed acquirers . Subject to section 17, a reference in section 13 to a person who has been accustomed to acquire goods or services from a second person shall be construed as including a reference to- a regular acquirer of any such goods or services from the second person; a person who, when he last acquired such goods or services, acquired them from the second person; and a person who at any time during the immediately preceding period of three months acquired any such goods or services from the second person. 17. Certain persons deemed not to be accustomed acquirers . Where- (a) goods or services have been acquired by a person from a second person pursuant to a contract between those persons

1474 Industrial (Commercial Practices) Act 1984, No. 115 under which the first-mentioned person was requirea over a particular period to acquire such goods or services; (b) that period has expired; and (c) after the expiration of that period the second person has refused to supply such goods or services to the first-mentioned person, then, for the purposes of the application of section 13 or 16 in relation to anything done after the second person has refused to supply goods or services as mentioned in paragraph (c) the first-mentioned person shall be deemed not to be a person who has been accustomed to acquire such goods or services from the second person. 18. Certain arrangements not to be executed . (1) If- (a) a person has, whether before or after the commencement of this Act, made a contract or arrangement or arrived at an understanding with another person; and (b) by reason of a provision of the contract, arrangement or understanding the making of the contract or arrangement or the arriving at the understanding by the first-mentioned person contravened section 13 or would have contravened that section if that section had been in force at the time when the contract or arrangement was made or the understanding was arrived at, a person shall not give effect to that provision of the contract, arrangement or understanding. (2) In determining for the purposes of subsection (1) whether the making of a contract or arrangement or the arriving at an understanding before the commencement of this Act would have contravened section 13 if that section had been in force at the time when the contract or arrangement was made or the understanding arrived at section 13 (2) shall be read as if the words "that is in writing" and the words "in writing" were omitted. 19. Establishment of purpose . For the purposes of this Part, a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have had or to have a particular purpose if the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding for that purpose or for purposes that include that purpose. PART IV-ENFORCEMENT AND REMEDIES 20. Interpretation . For the purposes of this Part, a person shall be taken to be involved in a contravention of a provision of Part II or Part III if- (a) he has done or attempted to do the act or thing that constitutes the contravention; (b) he has aided, abetted, counselled or procured the contravention; (c) he has induced or attempted to induce, whether by threats, promises or otherwise, the contravention; (d) he has been in any way, directly or indirectly, knowingly concerned in or party to the contravention; or

Industrial (Commercial Practices) Act 1984, No. 115 1475 (e) he has conspired with another or others to effect the contravention. 21. Jurisdiction to grant injunction . (1) Where upon the application of any person the Court is satisfied that a person has engaged or is proposing to engage in conduct by which he is or would be taken to be involved in a contravention of any provision of Part II or part III, the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) Where in the Court's opinion it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1). (3) The Court may rescind or vary an injunction granted under subsection (1) or (2) upon the application of any party to the proceeding in which the injunction was granted or of any person duly substituted for such a party. 22. Restrictive injunction . The power of the Court to grant, pursuant to this Part an injunction restraining a person from engaging in conduct may be exercised- (a) whether or not it appears to the Court that the person intends to engage again or to continue to engage in conduct of that kind; (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. 23. Mandatory injunction . The power of the Court to grant, pursuant to this part an injunction requiring a person to do any act or thing may be exercised- (a) whether or not it appears to the Court that the person intends to refuse or fail again or to continue to refuse or fail to do that act or thing; (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing. 24. Provision concerning Ministerial undertakings as to damages. (1) Where the Minister makes an application to the Court for the grant of an injunction pursuant to this Part the Court shall not require the applicant or any other person, as a condition. of granting an iterim injunction, to give an undertaking as to payment of damages and any interlocutory order made therein shall not contain an undertaking of that kind.

1476 Industrial (Commercial Practices) Act 1984, No. 115 (2) Where in a case to which subsection ( 1) does not apply- (a) the Court would, but for this subsection , require a person to give an undertaking as to payment of damages or costs; (b) the Minister gives the undertaking, the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person and it shall not be necessary for any interlocutory order for an injunction made therein to contain an undertaking by the party at whose instance the injunction is granted. 25. Stay of injunctions . (1) Where- (a) the Court has, pursuant to this Part, granted an injunction (including an interim injunction) in respect of conduct in which a person has engaged or proposes to engage whereby he is or would be taken to be involved in a contravention of any provision of Part II or Part III; (b) there is a proceeding pending before any court, commission, tribunal or authority (whether within or outside Queensland) exercising jurisdiction under a prescribed law in respect of a dispute relating to the conduct referred to in paragraph (a); and (c) the conduct relates to the supply of goods or services to or the acquisition of goods or services from a person who is or becomes a party to the proceeding referred to in paragraph (b), the Court may, upon the application of the Minister or of any party to the proceeding in which the injunction was granted or of any person substituted for such a party, if it considers that to do so would be likely to facilitate settlement of the dispute by conciliation and that in all the circumstances it would be just to do so, by its order stay the operation of the injunction. (2) An order for a stay under subsection (1) may be of unlimited duration or for a period specified in the order and may be rescinded or varied by the Court upon the application of any party to the proceeding in which the injunction was granted or of any person duly substituted for such a party. 26. Declaration of prescribed law. (1) The Governor in Council may by Order in council declare any Act or law to be a prescribed law for the purposes of section 25. A reference in that section to a prescribed law shall be construed as a reference to an Act or law so declared under this section. (2) A law, other than an Act of Queensland, shall not be declared under subsection ( 1) unless , in the opinion of the Governor in Council, it corresponds in its purposes to the Industrial Conciliation and Arbitration Act 1961-1983.

Industrial ( Commercial Practices ) Act 1984, No. 115 1477 27. Effect of conciliation of dispute on costs. Where a proceeding such as is referred to in paragraph (b) of section 25 (1) has terminated by reason that the dispute that related to conduct in respect of which an injunction (including an interim injunction) was granted under section 21 has been settled by conciliation, the Court, if it has not already made an order as to costs in the proceeding in which the injunction was granted or in which a rescission, variation or stay of operation of the injunction was sought, shall not make such an order in such last- mentioned proceeding. 28. Pecuniary penalties . (1) If the Court is satisfied that- a contravention of any provision of Part II or Part III has occurred; and a person is, pursuant to this Part, to be taken to be involved in that contravention then, subject to subsection (2), the Court may order the person to pay to the Minister, for the Consolidated Revenue Fund of Queensland, such pecuniary penalty not exceeding- $50 000 in the case of an individual; or $250 000 in the case of an association of persons, in respect of each act or omission constituting the conduct in question as the Court determines to be appropriate having regard to all relevant matters including- the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; the circumstances in which the act or omission took place; and whether the person has previously been found by the Court in proceedings under this Part to have engaged in similar conduct. (2) If the conduct by engaging in which a person is to be taken to be involved in a contravention of any provision of Part II or Part III constitutes a contravention of two or more provisions of this Act a proceeding may be instituted under this section against the person in respect of a contravention of any one or more of the provisions but the person is not liable to more than one pecuniary penalty in respect of the same conduct. 29. Civil action for recovery of pecuniary penalties. (1) Recovery on behalf of the State of a pecuniary penalty referred to in section 28 shall be by way of a civil proceeding instituted in the Court by the Minister. (2) A proceeding to recover a pecuniary penalty referred to in section 28 shall be commenced- (a) in the case of a contravention that consists of continuing conduct, within six years after the contravention has terminated; or

1478 Industrial (Commercial Practices) Act 1984, No. 115 (b) in any other case, within six years after the contravention has occurred. 30. Criminal proceedings not available . Proceedings as for an offence against this Act do not lie against a person in respect of a contravention of any provision of Part II or Part III. 31. Recovery of damages . The right of a person to recover damages on account of loss or damage caused to him by the unlawful conduct of another includes the right to recover an amount for loss or damage caused to him by conduct of another person who is, by reason of such conduct, to be taken to be involved in a contravention of Part II or Part III, subject however to the provisions of section 11. 32. Evidentiary value of previous findings . In an action against a person to recover damages a finding of fact by the Court made in a proceeding under section 21 or 28 in which that person has been found to be involved in a contravention of Part II or Part III is evidence of that fact and the finding may be proved by production of a document under the seal of the Court from which the finding appears.