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Is There a ‘Public Benefit’ in Improving Working Conditions for Independent Contractors? Collective Bargaining and the Trade Practices ACT 1974 (CTH)

Published online by Cambridge University Press:  24 January 2025

Shae McCrystal
Shae McCrystal*
Affiliation:
Faculty of Law, University of Sydney
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Extract

The legal distinction between work performed by an employee under a contract of service and work performed by an independent contractor under a contract for services is a central preoccupation in the field of labour law. This preoccupation has been traditionally focused on which workers fall within the common law definition of ‘employee’ (workers with a contract of service), which workers do not fall within the definition but should and what legal consequences follow from the inclusion of a worker within the labour law regulatory framework. Primarily the focus has been on ensuring that the labour law net encompasses those workers who are considered to be in need of the protections offered by labour law and debates over who those workers are. However, until recently, little attention has focused on the regulation of those workers who fall outside the definition of employee, where the worker's status as an independent contractor is uncontested.

Type
Research Article
Information
Federal Law Review , Volume 37 , Issue 2 , June 2009 , pp. 263 - 293
Copyright
Copyright © 2009 The Australian National University

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Footnotes

I would like to thank Andrew Stewart for advice in developing the ideas for this paper, Joellen Riley and Brett Williams for their comments during the writing of this version of the paper and the anonymous referees for their helpful suggestions. All errors or omissions remain my own.

References

1 For discussion of the definition of employment and the recent push to move beyond this definition see the collection of chapters in Guy, Davidov and Brian, Langille (eds), Boundaries and Frontiers of Labour Law (2006)Google Scholar.

2 The sham contracting provisions are currently enacted in ss 357-9 of the Fair Work Act 2009 (Cth) which prohibit misleading conduct with respect to employment relationships.

3 Australian Labor Party, National Platform and Constitution 2007, adopted at the 44th National ALP Conference, Sydney, April 2007, 64, para 147. This view was also expressed by the former Coalition government in the second reading speech for the IC Act where former Minister for Employment and Workplace Relations, Kevin Andrews stated: ‘In 2004 the Coalition said we would protect the right of independent contractors to work the way they want and we will do so.’ (Commonwealth, Parliamentary Debates, House of Representatives, 22 June 2006, 10).

4 In New South Wales, s 106 of the Industrial Relations Act 1996 (NSW) had fostered a busy unfair contracts jurisdiction in which independent contractors could challenge the fairness of their service contracts in the NSW Industrial Relations Commission. See Joellen, Riley, ‘A Fair Deal for the Entrepreneurial Worker? Self-Employment and Independent Contracting Post Work Choices’ (2006) 19 Australian Journal of Labour Law 246, 252Google Scholar.

5 Since around the time of the passage of the IC Act, there have been two books and a number of articles considering the regulation of independent contractors: Shae, McCrystal, ‘Regulating Collective Rights in Bargaining: Employees, Self-Employed Persons and Small Businesses’ in Christopher, Arup et al (eds), Labour Law and Labour Market Regulation (2006) 597Google Scholar; Michael, Rawling, ‘The Regulation of Outwork and the Federal Takeover of Labour Law’ (2007) 20 Australian Journal of Labour Law 189Google Scholar; Riley, ‘A Fair Deal for the Entrepreneurial Worker?', above n 4; Joellen, Riley, Independent Work Contracts (2007)Google Scholar; Andrew, Stewart, Understanding Independent Contractors (2007)Google Scholar. Interest in the regulation of work performed outside the context of employment has also been explored by authors in other jurisdictions. See, eg, Cynthia, Cranford et al, Self-Employed Workers Organize: Law, Policy, and Unions (2005)Google Scholar.

6 Unless otherwise stated, the substantive provisions of the FW Act apply to ‘employees’ employed by ‘employers’ within the definition of employer in s 12 of the FW Act. The word employee is not defined, so the Act relies upon the common law definition of ‘employee', workers with a contract of service, which is determined at common law through the ‘multiple indicia test'. See Hollis v Vabu Pty Ltd (2001) 207 CLR 21 and for discussion of the legal distinction between employees and independent contractors see Rosemary Owens and Joellen Riley, The Law of Work (2007) chap 4; Breen, Creighton and Andrew, Stewart, Labour Law (4th ed, 2005)Google Scholar chap 11.

7 Shae, McCrystal, ‘Collective Bargaining by Independent Contractors: Challenges from Labour Law’ (2007) 20 Australian Journal of Labour Law 1, 14–26Google Scholar.

8 Daryl, Dawson, Jillian, Segal and Curt, Rendell, Review of the Competition Provisions of the Trade Practices Act (2003) 15Google Scholar ('Dawson Review’).

9 Australian Labor Party, above n 3, 64, para 154.

10 See above n 6.

11 Employment is not further defined within the TP Act, so the exclusion of activities relating to ‘employment’ conditions relies upon the common law definition of an employment contract. See above n 6. The continued application of this exemption has been challenged by some sections of the business community; see Australian Chamber of Commerce and Industry, Workplace Relations and Trade Practices: Reconciling Competition with Collectivism (2003) <http://www.acci.asn.au/text_files/issues_papers/Labour_Relations/LR47.pdf> at 3 August 2009.

12 TP Act s 45(2).

13 There are some specific State statutory provisions that allow for collective bargaining by certain groups of contractors. In NSW the Industrial Relations Act 1996 (NSW) ch 6, pt 3 provides for the approval of collective agreements created by drivers of public vehicles and carriers. In Victoria, the Owner Drivers and Forestry Contractors Act 2005 (Vic) s 25 allows for the appointment of bargaining agents by groups of contractors. Both Acts authorise conduct in pursuit of contracts covered by the legislation for the purposes of the TP Act and the National Competition Code — Industrial Relations Act 1996 (NSW) s 310A; Owner Drivers and Forestry Contractors Act 2005 (Vic) s 64. The application of these regimes to services contracts falling within federal jurisdictional competence is not excluded by the IC Act s 7(2); see Riley, ‘A Fair Deal for the Entrepreneurial Worker', above n 4.

14 Judy, Fudge, ‘Fragmenting Work and Fragmenting Organizations: The Contract of Employment and the Scope of Labour Regulation’ (2006) 44 Osgoode Hall Law Journal 609, 621Google Scholar. For a useful illustration of the spectrum of self-employed work see Cranford et al, above n 5.

15 Fudge, above n 14, 621.

16 Matthew, Waite and Lou, Will, Self-Employed Contractors in Australia: Incidence and Characteristics (2001)Google Scholar.

17 McCrystal, ‘Regulating Collective Rights in Bargaining', above n 5, 615.

18 Dawson, Segal and Rendell, above n 8, 115.

19 Andrew Stewart has convincingly argued that ‘disguised’ employees should be defined as employees for the purposes of regulating the performance of work, see Andrew, Stewart, ‘Redefining Employment? Meeting the Challenge of Contract and Agency Labour’ (2002) 15 Australian Journal of Labour Law 235Google Scholar. However, while it remains possible to manipulate the definition of employee under the common law and create an independent contractor relationship even where the worker possesses many of the hallmarks of employment, it is important to consider what other regulatory avenues may be utilised by these workers.

20 For discussion of those genuinely independent contractors which may be in need of regulatory protection see Andrew Stewart, ‘Good Faith and Fair Dealing at Work’ in Arup et al (eds), above n 5, 579, 595.

21 Warren, Grimes, ‘The Sherman Act's Unintended Bias Against Lilliputians: Small Players’ Collective Action as a Counter to Relational Market Power’ (2001) 69 Antitrust Law Journal 195Google Scholar.

22 Hugh, Collins, ‘Market Power, Bureaucratic Power, and the Contract of Employment’ (1986) 15 Industrial Law Journal 1Google Scholar.

23 Ibid 2.

24 Alan, Hyde, ‘What is Labour Law?’ in Guy, Davidov and Brian, Langille (eds), Boundaries and Frontiers of Labour Law (2006) 37, 55Google Scholar.

25 Simon, Deakin and Frank, Wilkinson, ‘Labour Law and Economic Theory: A Reappraisal’ in Hugh, Collins, Paul, Davies and Roger, Rideout (eds), Legal Regulation of the Employment Relation (2000) 29, 42Google Scholar.

26 For the classic exposition of this argument see SirOtto, Kahn-Freund, Labour and the Law (2nd ed, 1977) 3–15Google Scholar.

27 See, eg, Deakin and Wilkinson, above n 25; Grimes, above n 21; Hyde, above n 24.

28 Paul Davies and Mark Freedland, ‘Employees, Workers and the Autonomy of Labour Law’ in Collins, Davies and Rideout (eds), above n 25, 267, 271.

29 The TP Act primarily applies to corporate conduct or conduct by individuals who are involved in interstate or international trade or commerce; or in dealings with the Commonwealth; or in trade and commerce in a Territory (TP Act s 6). Coverage of the anti-competitive conduct provisions to natural persons involved purely in intrastate trade and commerce and who are not dealing with the Commonwealth government is achieved through the National Competition Code (NCC) which involves the replication in State and Territory legislation of Part IV to apply to persons.

30 While ‘competition’ is not defined in the TP Act, s 45(3) clarifies that ‘competition’ for the purposes of s 45 in relation to a provision (or proposed provision) of a contract, arrangement or understanding, means competition in any market in which a corporation that is a party to the contract, arrangement or understanding supplies or acquires or is likely to supply or acquire goods or services.

31 Re Queensland Co-Operative Milling Association Ltd (1976) 8 ALR 481, 515 (Woodward J, Shipton and Brunt (Members)); Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 1381, [11] (Burchett and Hely JJ).

32 Re Queensland Co-Operative Milling Association Ltd (1976) 8 ALR 481, 515 (Woodward J, Shipton and Brunt (Members)).

33 Ibid 515–16; Outboard Marine Australia Pty Ltd v Hecar Investments No 6 Pty Ltd (1982) 44 ALR 667, 669 (Bowen CJ and Fisher J).

34 See TP Act s 45(3) for the definition of ‘competition'.

35 Re Queensland Co-Operative Milling Association Ltd (1976) 8 ALR 481, 516 (Woodward J, Shipton and Brunt (Members)).

36 TP Act s 44ZZRD.

37 See TP Act s 4D definition of ‘exclusionary provision’ and s 45(2)(a)(i), (b)(i). The High Court in Visy Paper Pty Ltd v ACCC (2003) 216 CLR 1, 25 (Kirby J) cautioned against the use of the label ‘collective boycott’ when referring to arrangements containing exclusionary provisions because the potential scope of conduct that could fall within the meaning of an exclusionary provision is greater than that suggested by the term ‘boycott'. However, in the context of this paper, the term ‘collective boycott’ will be used when referring to agreements between independent contractors which contain an exclusionary provision involving a refusal to deal with a target until that target agrees to a demand because it is the form of potential exclusionary provision that is most relevant for these workers if they engage in collective bargaining. The use of the term ‘collective boycott’ does not imply that this is the only form of activity that could potentially breach the prohibition on exclusionary provisions, but it is the most relevant type of exclusionary provision for the purposes of this discussion.

38 TP Act s 45(2)(a)(ii), (b)(ii). An example of collective bargaining by independent contractors involving exclusionary provisions and conduct which substantially lessened competition is Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159.

39 For example in ACCC Objection Notice in respect of a collective bargaining notification lodged by Australian Medical Association (Vic) Pty Ltd on behalf of a group of doctors at Latrobe Regional Hospital, 19 December 2007, CB00004, Public Register Number C2007/1749, the Australian Medical Association which had lodged the notification submitted that doctor members of the proposed bargaining group were ‘often uncertain about which topics they are permitted to collectively discuss freely’ at [3.99]. Objection notices are accessible on the ACCC website at <http://www.accc.gov.au>.

40 TP Act s 88. For discussion see Rhonda, Smith, ‘Authorisation and the Trade Practices Act: More About Public Benefit’ (2003) 11 Competition and Consumer Law Journal 21Google Scholar.

41 TP Act s 93AB. Regulations passed in March 2007 increased the contract price threshold in certain industries (petrol retailing — $15 million; new motor vehicle retailing — $20 million; farm machinery retailing — $10 million and primary production — $5 million): Trade Practices Regulations 1974 (Cth) regs 71A–71D. For discussion see Shae McCrystal, ‘Collective Bargaining and the Trade Practices Act: The Trade Practices Legislation Amendment Act (No 1) 2006 (Cth)’ (2007) 20 Australian Journal of Labour Law 207.

42 TP Act s 93AD(1).

43 TP Act s 93AC does not limit the use of objection notices to the initial application period.

44 See McCrystal, ‘Collective Bargaining by Independent Contractors', above n 7.

45 Authorisation applications and decisions are accessible on the ACCC website at <http://www.accc.gov.au>.

46 The authorisations were for tobacco growers (A90941–A90943), chicken growers (A90901–A90905) and two for milk vendors (A90927; A90965–A90973).

47 Determination, Applications for authorisation by the Southern Sydney Organisation of Councils in respect of joint tendering and contracting for the services of contractors to provide residual waste transfer, processing and disposal services to respective local government areas, 13 April 2005, Authorisation Number A90926, Public Register Number C2004/989.

48 The authorisations were for TAB agents (A90952) and motor vehicle storage on wharves (A90937).

49 Determination, Applications for authorisations lodged by CSR Building Products Limited in relation to collective bargaining by its contracted owner-drivers in the Brisbane area, 31 August 2005, Authorisation Numbers A90964 and A90965, Public Register Number C2005/598, C2005/547.

50 Determination, Application for authorisation lodged by the Tasmanian Forest Contractors Association Ltd in relation to collective bargaining arrangements between its members and various Tasmanian wood companies, 22 February 2006, Authorisation Number A90974, Public Register Number C2005/1079 (denied); Determination, Application for authorisation lodged by Australian Swimmers Association on behalf of its members in relation to collective bargaining with Swimming Australia Limited, 22 March 2006, Authorisation Number A40106, Public Register Number C2006/260 (approved).

51 Commonwealth, Parliamentary Debates, House of Representatives, 17 February 2005, 2 (Christopher Pearce).

52 The ACCC notification register is accessible on the ACCC website at <http://www.accc.gov.au>. The other notification applications have followed a similar pattern to the one demonstrated by the discussion of authorisations and have, for example, involved citrus growers (Notifications CB00001 and CB00002, C2007/1525); arrangements for medical insurance fees (Notification CB00006, C2007/2172) and franchise operators (Notifications CB00009–CB00056, C2008/1648).

53 TP Act s 93AC(1).

54 TP Act s 93AC(2).

55 This interpretation is applied by analogy with the authorisation provisions which use identical language and were interpreted in this manner in Australian Association of Pathology Practices Incorporated (2004) 180 FLR 44. The wider range of public detriments that can be taken into account by the broader test was illustrated in Re VFF Chicken Meat Growers Boycott Authorisation [2006] ACompT 2 where the Competition Tribunal considered the animal welfare implications of an application to authorise proposed collective boycott conduct.

56 These steps are outlined in Australian Competition and Consumer Commission, Guide to Collective Bargaining Notifications (2008) ('ACCC Guide’).

57 (1976) 8 ALR 481, 510 (Woodward J, Shipton and Brunt (Members)).

58 Ibid.

59 JusticeRobert, Shenton French, ‘Competition Law — Covering a Multitude of Sins’ (2004) 12 Competition and Consumer Law Journal 125, 129–30Google Scholar.

60 (1994) ATPR ¶41-357, 42 677.

61 ACCC Guide, above n 56.

62 Ibid 28–9.

63 Ibid 29–30.

64 Ibid 30–1.

65 For a discussion of private versus public benefit and the construction of the ‘public’ in the context of ACCC and Australian Competition Tribunal authorisation decisions see Robert, Officer and Philip, Williams, ‘The Public Benefit Test in an Authorisation Decision’ in Megan, Richardson and Philip, Williams (eds), The Law and the Market (1995) 157, 158–9Google Scholar; John, Duns, ‘Competition Law and Public Benefits’ (1994) 16 Adelaide Law Review 245, 253–6Google Scholar.

66 Qantas Airways Ltd [2004] ACompT 9, [170] and see Maureen, Brunt, ‘The Australian Antitrust Law after 20 Years — A Stocktake’ (1994) 9 Review of Industrial Organization 483, 507Google Scholar.

67 [2004] ACompT 9, [179].

68 Ibid [185], [187].

69 Ibid [185].

70 Re Rural Traders Co-Operative (WA) Ltd (1979) 37 FLR 244, 261–2.

71 ACCC Guide, above n 56, 28–32.

72 Stephen, Corones, Competition Law in Australia (4th ed, 2007) 186Google Scholar.

73 Ibid.

74 ACCC Objection Notice in respect of a collective bargaining notification lodged by Australian Medical Association (Vic) on behalf of a group of doctors at Latrobe Regional Hospital, 19 December 2007, CB00004, Public Register Number C2007/1749.

75 ACCC Guide, above n 56, 28.

76 Dawson, Segal and Rendell, above n 8, 15.

77 ACCC Guide, above n 56, 28.

78 Ibid 31.

79 Ibid 32.

80 Re QCMA (1976) 8 ALR 481, 510 (Woodward J, Shipton and Brunt (Members)).

81 Grimes, above n 21, 207.

82 Ibid 210.

83 Ibid.

84 Smith, above n 40, 26–7.

85 See, eg, ACCC Guide, above n 56, 29 under the heading ‘Transaction cost savings'.

86 See, eg, Draft Objection Notice in respect of a collective bargaining notification lodged by Australian Medical Association (Vic) Pty Ltd on behalf of a group of doctors at Werribee Mercy Hospital, CB00005, Public Register Number C2007/1930, 8 November 2007, [3.58]; Assessment: collective bargaining notification lodged by the Australian Newsagents’ Federation, CB00003, Public Register Number C2007/1612, 13 September 2007, [3.25]. The paragraph appears in all notification decisions published by the ACCC to date, with a slight (but not substantive) variation in later notifications.

87 The following factors are taken from the ACCC Guide, above n 56, 24–8.

88 Determination, Applications for authorisation lodged by the Victorian Farmers Federation on behalf of its member chicken meat growers in relation to collective bargaining by chicken meat grower groups with their nominated processors in Victoria, 2 March 2005, Authorisation Numbers A40093 and A90931, Public Register Numbers C2004/642, C2004/1364.

89 Re VFF Chicken Meat Growers Boycott Authorisation [2006] ACompT 2. In overturning the decision of the ACCC, the Competition Tribunal reflected on the fact that a collective boycott had never before been authorised: ‘In the thirty-two years of the life of the Act, the ACCC and its predecessor have never before authorised a collective boycott’ [442].

90 The facts are taken from Determination, Applications for authorisation lodged by the Victorian Farmers Federation on behalf of its member chicken meat growers in relation to collective bargaining by chicken meat grower groups with their nominated processors in Victoria, 2 March 2005, Authorisation Numbers A40093 and A90931, Public Register Numbers C2004/642, C2004/1364.

91 Ibid [13.8].

92 Ibid [12.1]–[12.27].

93 Re VFF Chicken Meat Growers Boycott Authorisation [2006] ACompT 2, [451].

94 ACCC Guide, above n 56, 33, 35.

95 Warren, Pengilley, ‘The Competition Tribunal and Chicken Meat: Do Exclusionary Provisions Have Any Future Hope of Authorisation?’ (2006) 14 Competition and Consumer Law Journal 196Google Scholar.

96 Ibid 199.

97 See, eg, Determination, Application for revocation of authorisation A90853 and substitution by new authorisation A91109 lodged by Lottery Agents Queensland Ltd in respect of collective negotiation by Lottery Agents Queensland, on behalf of its members, in relation to terms and conditions of agency agreements and arrangements with the Golden Casket Lottery Corporation, 19 November 2008, Authorisation Number A91109, Public Register Number C2008/1433; Determination, Application for authorisation lodged by Victorian Potato Growers Council on behalf of its members in respect of collective bargaining with potato buyers, 27 June 2007, Authorisation Number A91048, Public Register Number C2007/881; Determination, Application for authorisation lodged by Office Choice Limited, Office National Limited and Office Products Depot Limited in respect of collective bargaining with office products suppliers, 19 September 2007, Authorisation Number A91058, Public Register Number C2007/1468.

98 Determination, Application for authorisation lodged by The Tasmanian Forest Contractors Association Ltd in relation to collective bargaining arrangements between its members and various Tasmanian wood companies, 22 February 2006, Authorisation Number A90974, Public Register Number C2005/1079.

99 Ibid [9.1]–[9.35].

100 Determination, Application for authorisation lodged by Australian Swimmers Association on behalf of its members in relation to collective bargaining with Swimming Australia Limited, 22 March 2006, Authorisation Number A40106, Public Register Number C2006/266.

101 Ibid [2.30].

102 These facts are taken from Collective Bargaining Notification CB00008 lodged with the ACCC on 25 March 2008 by Ken Hardisty on behalf of a group of telecommunications subcontractors. This notification is no longer available on the notifications register but a copy obtained while the application was listed on the register is held by the author.

103 Information provided by Shane Chisholm, Assistant Director, Adjudication Branch, ACCC, email from Shane Chisholm to Shae McCrystal, 8 August 2008.

104 McCrystal, ‘Collective Bargaining and the Trade Practices Act', above n 41, 214.

105 The following facts and submissions are taken from Collective Bargaining Notification CB00008, above n Error! Bookmark not defined..

106 Ibid.

107 While the proposal was to develop a ‘voluntary’ model contract, the previous practice of Service Stream suggests that if it agreed to develop a new standard form contract, it would probably be offered to new contractors on a take-it-or-leave-it basis.

108 This was not clear from the information provided in the notification.

109 Determination, Application for authorisation lodged by Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU Qld) in respect of collective negotiations by current and future owner drivers with current and future acquirers of earthmoving services in south-east Queensland, 26 March 2009, Authorisation Number A91103, Public Register Number C2008/1627.

110 Ibid [5.32].

111 Objection Notice in respect of a collective bargaining notification lodged by Australian Medical Association (Vic) Pty Ltd on behalf of a group of doctors at Latrobe Regional Hospital, 19 December 2007, CB00004, Public Register Number C2007/1749. The second notification involving almost identical facts at another Victorian public hospital was also rejected by the ACCC in Draft Objection Notice in respect of a collective bargaining notification lodged by Australian Medical Association (Vic) Pty Ltd on behalf of a group of doctors at Werribee Mercy Hospital, 8 November 2007, CB00005, Public Register Number C2007/1930.

112 The facts of this notification are taken from Objection Notice in respect of a collective bargaining notification lodged by Australian Medical Association (Vic) Pty Ltd on behalf of a group of doctors at Latrobe Regional Hospital, 19 December 2007, CB00004, Public Register Number C2007/1749.

113 Ibid [3.79]–[3.81].

114 Ibid [3.92]–[3.93].

115 Ibid [3.148].

116 Ibid [3.76].

117 Ibid [3.108].

118 Ibid [3.134].

119 For example, in early February 2009 the ACCC authorised proposed collective bargaining arrangements by a group of 24 truck owner drivers to negotiate collectively with earthmoving contractors in relation to the terms, prices and conditions for the supply of earthmoving services by the owner drivers. At the time of the application, the bargaining group was powerless, subject to standard form contracting arrangements and represented a very small proportion of the market. The group was only able to demonstrate very limited public benefit (increased input into contracting arrangements) and had to keep their proposed arrangements entirely voluntary (no compulsion of members of the group or the target) in order to gain approval. Even in these circumstances, the ACCC only granted conditional authorisation of the application, requiring the bargaining group to provide the ACCC with regular updates on the number of participating drivers in order to ensure that any bargaining remained purely voluntary and the size of the group did not allow for coercive conduct. See Determination, Application for authorisation lodged by Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU Qld) in respect of collective negotiations by current and future owner drivers with current and future acquirers of earthmoving services in south-east Queensland, 26 March 2009, Authorisation Number A91103, Public Register Number C2008/1627.

120 Paul, Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (1980) 66–7Google Scholar (emphasis in original).

121 Determination, Applications for authorisation lodged by the Victorian Farmers Federation on behalf of its member chicken meat growers in relation to collective bargaining by chicken meat grower groups with their nominated processors in Victoria, 2 March 2005, Authorisation Numbers A40093 and A90931, Public Register Numbers C2004/642, C2004/1364, [10.74]. As discussed above this authorisation was overturned on appeal to the Competition Tribunal in Re VFF Chicken Meat Growers Boycott Authorisation [2006] ACompT 2.

122 Determination, Application for authorisation lodged by Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU Qld) in respect of collective negotiations by current and future owner drivers with current and future acquirers of earthmoving services in south-east Queensland, 26 March 2009, Authorisation Number A91103, Public Register Number C2008/1627, [3.79].

123 Dawson, Segal and Rendell, above n 8.

124 ACCC Chairman Graeme Samuel quoted in Kathy Swan, ‘Collective Bargaining Option Ignored’ ABC News Online, 30 March 2008. <www.abc.net.au/news/stories/2008/03/30/2202837.htm> at 3 August 2009.

125 Dawson, Segall and Rendell, above n 8.

126 Re QCMA (1976) 8 ALR 481, 510 (Woodward J, Shipton and Brunt (Members)).