Competition and Consumer Act. Australia

Чтение книги онлайн.

СКАЧАТЬ 2: If an environmental organisation or a consumer organisation is not a body corporate:

      (a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the organisation as such); but

      (b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.

      Meaning of industrial action — basic definition

      (4) In subsection (3), industrial action means:

      (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:

      (i) the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or

      (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or

      (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or

      (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or

      (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.

      For this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009.

      Meaning of industrial action — further clarification

      (5) For the purposes of subsection (3):

      (a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and

      (b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

      Subsections (1), (2) and (3) do not protect people not covered by them

      (6) In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct.

      Defences to contravention of subsection 45DB(1)

      (7) In a proceeding under this Act in relation to a contravention of subsection 45DB(1), it is a defence if the defendant proves:

      (a) that a notice in respect of the conduct concerned has been duly given to the Commission under subsection 93(1) and the Commission has not given a notice in respect of the conduct under subsection 93(3) or (3A); or

      (b) that the dominant purpose for which the defendant engaged in the conduct concerned was to preserve or further a business carried on by him or her.

      Each person to prove defence

      (8) If:

      (a) a person engages in conduct in concert with another person; and

      (b) the other person proves a matter specified in paragraph (7)(a) or (b) in respect of that conduct;

      in applying subsection 45DB(1) to the first person, ignore the fact that the other person has proved that matter.

      Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions under this Act in respect of industrial action that is protected action for the purposes of that section.

      45E Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services

      Situations to which section applies

      (1) This section applies in the following situations:

      (a) a supply situation — in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or

      (b) an acquisition situation — in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person).

      Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations.

      Note: For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7).

      Prohibition in a supply situation

      (2) In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:

      (a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or

      (b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:

      (i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and

      (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.

      Prohibition in an acquisition situation

      (3) In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:

      (a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or

      (b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition:

      (i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and

      (ii) СКАЧАТЬ