Western Australian Consolidated Acts Western Australian Consolidated Acts[This note contains the text as at 2 December 2005. For the
current text of Part I of the Schedule to the Trade Practices Act 1974
of the Commonwealth reference should be made to that Act.]
45. Contracts,
arrangements or understandings that restrict dealings or affect
competition
(1) If a provision of a contract made before the commencement of this
section:
(a) is an exclusionary provision; or
(b) has the purpose, or has or is likely to have the effect, of
substantially lessening competition;
that provision is unenforceable in so far as it confers rights or
benefits or imposes duties or obligations on a person.
(2) A person shall not:
(a) make a contract or arrangement, or arrive at an understanding,
if:
(i) the proposed contract, arrangement or understanding contains an
exclusionary provision; or
(ii) a provision of the proposed contract, arrangement or understanding
has the purpose, or would have or be likely to have the effect, of substantially
lessening competition; or
(b) give effect to a provision of a contract, arrangement or
understanding, whether the contract or arrangement was made, or the
understanding was arrived at, before or after the commencement of this section,
if that provision:
(i) is an exclusionary provision; or
(ii) has the purpose, or has or is likely to have the effect, of
substantially lessening competition.
(3) For the purposes of this section and section 45A, competition, in
relation to a provision of a contract, arrangement or understanding or of a
proposed contract, arrangement or understanding, means competition in any market
in which a person who is a party to the contract, arrangement or understanding
or would be a party to the proposed contract, arrangement or understanding, or
any body corporate related to such a person, supplies or acquires, or is likely
to supply or acquire, goods or services or would, but for the provision, supply
or acquire, or be likely to supply or acquire, goods or services.
(4) For the purposes of the application of this section in relation to a
particular person, a provision of a contract, arrangement or understanding or of
a proposed contract, arrangement or understanding shall be deemed to have or to
be likely to have the effect of substantially lessening competition if that
provision and any one or more of the following provisions, namely:
(a) the other provisions of that contract, arrangement or understanding or
proposed contract, arrangement or understanding; and
(b) the provisions of any other contract, arrangement or understanding or
proposed contract, arrangement or understanding to which the person or a body
corporate related to the person is or would be a party;
together have or are likely to have that effect.
(5) This section does not apply to or in relation to:
(a) a provision of a contract where the provision constitutes a covenant
to which section 45B applies or, but for subsection 45B(9), would
apply;
(b) a provision of a proposed contract where the provision would
constitute a covenant to which section 45B would apply or, but for subsection
45B(9), would apply; or
(c) a provision of a contract, arrangement or understanding or of a
proposed contract, arrangement or understanding in so far as the provision
relates to:
(i) conduct that contravenes section 48; or
(ii) conduct that would contravene section 48 but for the operation of
subsection 88(8A); or
(iii) conduct that would contravene section 48 if this Act defined the
acts constituting the practice of resale price maintenance by reference to the
maximum price at which goods or services are to be sold or supplied or are to be
advertised, displayed or offered for sale or supply.
(6) The making of a contract, arrangement or understanding does not
constitute a contravention of this section by reason that the contract,
arrangement or understanding contains a provision the giving effect to which
would, or would but for the operation of subsection 47(10) or 88(8) or section
93, constitute a contravention of section 47 and this section does not apply to
or in relation to the giving effect to a provision of a contract, arrangement or
understanding by way of:
(a) engaging in conduct that contravenes, or would but for the operation
of subsection 47(10) or 88(8) or section 93 contravene, section 47; or
(b) doing an act by reason of a breach or threatened breach of a condition
referred to in subsection 47(2), (4), (6) or (8), being an act done by a person
at a time when:
(i) an authorization under subsection 88(8) is in force in relation to
conduct engaged in by that person on that condition; or
(ii) by reason of subsection 93(7) conduct engaged in by that person on
that condition is not to be taken to have the effect of substantially lessening
competition within the meaning of section 47; or
(iii) a notice under subsection 93(1) is in force in relation to conduct
engaged in by that person on that condition.
(7) This section does not apply to or in relation to a contract,
arrangement or understanding in so far as the contract, arrangement or
understanding provides, or to or in relation to a proposed contract, arrangement
or understanding in so far as the proposed contract, arrangement or
understanding would provide, directly or indirectly for the acquisition of any
shares in the capital of a body corporate or any assets of a person.
(8) This section does not apply to or in relation to a contract,
arrangement or understanding, or a proposed contract, arrangement or
understanding, the only parties to which are or would be bodies corporate that
are related to each other.
(9) The making by a person of a contract that contains a provision in
relation to which subsection 88(1) applies is not a contravention of subsection
(2) of this section if:
(a) the contract is subject to a condition that the provision will not
come into force unless and until the person is granted an authorization to give
effect to the provision; and
(b) the person applies for the grant of such an authorization within 14
days after the contract is made;
but nothing in this subsection prevents the giving effect by a person to
such a provision from constituting a contravention of subsection (2).
45A. Contracts,
arrangements or understandings in relation to prices
(1) Without limiting the generality of section 45, a provision of a
contract, arrangement or understanding, or of a proposed contract, arrangement
or understanding, shall be deemed for the purposes of that section to have the
purpose, or to have or to be likely to have the effect, of substantially
lessening competition if the provision has the purpose, or has or is likely to
have the effect, as the case may be, of fixing, controlling or maintaining, or
providing for the fixing, controlling or maintaining of, the price for, or a
discount, allowance, rebate or credit in relation to, goods or services supplied
or acquired or to be supplied or acquired by the parties to the contract,
arrangement or understanding or the proposed parties to the proposed contract,
arrangement or understanding, or by any of them, or by any bodies corporate that
are related to any of them, in competition with each other.
(2) Subsection (1) does not apply to a provision of a contract or
arrangement made or of an understanding arrived at, or of a proposed contract or
arrangement to be made or of a proposed understanding to be arrived at, for the
purposes of a joint venture to the extent that the provision relates or would
relate to:
(a) the joint supply by 2 or more of the parties to the joint venture, or
the supply by all the parties to the joint venture in proportion to their
respective interests in the joint venture, of goods jointly produced by all the
parties in pursuance of the joint venture;
(b) the joint supply by 2 or more of the parties to the joint venture of
services in pursuance of the joint venture, or the supply by all the parties to
the joint venture in proportion to their respective interests in the joint
venture of services in pursuance of, and made available as a result of, the
joint venture; or
(c) in the case of a joint venture carried on by a body corporate as
mentioned in subparagraph 4J(a)(ii):
(i) the supply by that body corporate of goods produced by it in pursuance
of the joint venture; or
(ii) the supply by that body corporate of services in pursuance of the
joint venture, not being services supplied on behalf of the body corporate
by:
(A) a person who is the owner of shares in the capital of the body
corporate; or
(B) a body corporate that is related to such a person.
(4) Subsection (1) does not apply to a provision of a contract,
arrangement or understanding, or of a proposed contract, arrangement or
understanding, being a provision:
(a) in relation to the price for goods or services to be collectively
acquired, whether directly or indirectly, by parties to the contract,
arrangement or understanding or by proposed parties to the proposed contract,
arrangement or understanding; or
(b) for the joint advertising of the price for the re-supply of goods or
services so acquired.
(5) For the purposes of this Act, a provision of a contract, arrangement
or understanding, or of a proposed contract, arrangement or understanding, shall
not be taken not to have the purpose, or not to have or to be likely to have the
effect, of fixing, controlling or maintaining, or providing for the fixing,
controlling or maintaining of, the price for, or a discount, allowance, rebate
or credit in relation to, goods or services by reason only of:
(a) the form of, or of that provision of, the contract, arrangement or
understanding or the proposed contract, arrangement or understanding;
or
(b) any description given to, or to that provision of, the contract,
arrangement or understanding or the proposed contract, arrangement or
understanding by the parties or proposed parties.
(6) For the purposes of this Act but without limiting the generality of
subsection (5), a provision of a contract, arrangement or understanding, or of a
proposed contract, arrangement or understanding, shall not be taken not to have
the purpose, or not to have or to be likely to have the effect, of fixing,
controlling or maintaining, or providing for the fixing, controlling or
maintaining of, the price for, or a discount, allowance, rebate or credit in
relation to, goods or services by reason only that the provision recommends, or
provides for the recommending of, such a price, discount, allowance, rebate or
credit if in fact the provision has that purpose or has or is likely to have
that effect.
(7) For the purposes of the preceding provisions of this section but
without limiting the generality of those provisions, a provision of a contract,
arrangement or understanding, or of a proposed contract, arrangement or
understanding, shall be deemed to have the purpose, or to have or to be likely
to have the effect, of fixing, controlling or maintaining, or providing for the
fixing, controlling or maintaining of, the price for, or a discount, allowance,
rebate or credit in relation to, goods or services supplied as mentioned in
subsection (1) if the provision has the purpose, or has or is likely to have the
effect, of fixing, controlling or maintaining, or providing for the fixing,
controlling or maintaining of, such a price, discount, allowance, rebate or
credit in relation to a re-supply of the goods or services by persons to whom
the goods or services are or would be supplied by the parties to the contract,
arrangement or understanding or the proposed parties to the proposed contract,
arrangement or understanding, or by any of them, or by any bodies corporate that
are related to any of them.
(8) The reference in subsection (1) to the supply or acquisition of goods
or services by persons in competition with each other includes a reference to
the supply or acquisition of goods or services by persons who, but for a
provision of any contract, arrangement or understanding or of any proposed
contract, arrangement or understanding, would be, or would be likely to be, in
competition with each other in relation to the supply or acquisition of the
goods or services.
45B. Covenants
affecting competition
(1) A covenant, whether the covenant was given before or after the
commencement of this section, is unenforceable in so far as it confers rights or
benefits or imposes duties or obligations on a first person or on a person
associated with a first person if the covenant has, or is likely to have, the
effect of substantially lessening competition in any market in which the first
person or any person associated with the first person supplies or acquires, or
is likely to supply or acquire, goods or services or would, but for the
covenant, supply or acquire, or be likely to supply or acquire, goods or
services.
(2) A first person or a person associated with a first person shall
not:
(a) require the giving of a covenant, or give a covenant, if the proposed
covenant has the purpose, or would have or be likely to have the effect, of
substantially lessening competition in any market in which:
(i) the first person, or any person associated with the first person by
virtue of paragraph (7)(b), supplies or acquires, is likely to supply or
acquire, or would, but for the covenant, supply or acquire, or be likely to
supply or acquire, goods or services; or
(ii) any person associated with the first person by virtue of the
operation of paragraph (7)(a) supplies or acquires, is likely to supply or
acquire, or would, but for the covenant, supply or acquire, or be likely to
supply or acquire, goods or services, being a supply or acquisition in relation
to which that person is, or would be, under an obligation to act in accordance
with directions, instructions or wishes of the first person;
(b) threaten to engage in particular conduct if a person who, but for
subsection (1), would be bound by a covenant does not comply with the terms of
the covenant; or
(c) engage in particular conduct by reason that a person who, but for
subsection (1), would be bound by a covenant has failed to comply, or proposes
or threatens to fail to comply, with the terms of the covenant.
(3) Where a person:
(a) issues an invitation to another person to enter into a contract
containing a covenant;
(b) makes an offer to another person to enter into a contract containing a
covenant; or
(c) makes it known that the person will not enter into a contract of a
particular kind unless the contract contains a covenant of a particular kind or
in particular terms;
the first-mentioned person shall, by issuing that invitation, making that
offer or making that fact known, be deemed to require the giving of the
covenant.
(4) For the purposes of this section, a covenant or proposed covenant
shall be deemed to have, or to be likely to have, the effect of substantially
lessening competition in a market if the covenant or proposed covenant, as the
case may be, would have, or be likely to have, that effect when taken together
with the effect or likely effect on competition in that market of any other
covenant or proposed covenant to the benefit of which:
(a) a person who is or would be, or but for subsection (1) would be,
entitled to the benefit of the first-mentioned covenant or proposed covenant;
or
(b) a person associated with the person referred to in
paragraph (a);
is or would be, or but for subsection (1) would be, entitled.
(5) The requiring of the giving of, or the giving of, a covenant does not
constitute a contravention of this section by reason that giving effect to the
covenant would, or would but for the operation of subsection 88(8) or
section 93, constitute a contravention of section 47 and this section does
not apply to or in relation to engaging in conduct in relation to a covenant by
way of:
(a) conduct that contravenes, or would but for the operation of subsection
88(8) or section 93 contravene, section 47; or
(b) doing an act by reason of a breach or threatened breach of a condition
referred to in subsection 47(2), (4), (6) or (8), being an act done by a person
at a time when:
(i) an authorization under subsection 88(8) is in force in relation to
conduct engaged in by that person on that condition; or
(ii) by reason of subsection 93(7) conduct engaged in by that person on
that condition is not to be taken to have the effect of substantially lessening
competition within the meaning of section 47; or
(iii) a notice under subsection 93(1) is in force in relation to conduct
engaged in by that person on that condition.
(6) This section does not apply to or in relation to a covenant or
proposed covenant where the only persons who are or would be respectively bound
by, or entitled to the benefit of, the covenant or proposed covenant are persons
who are associated with each other or are bodies corporate that are related to
each other.
(7) For the purposes of this section, section 45C and
subparagraph 87(3)(a)(ii), the first person and another person (the second
person) shall be taken to be associated with each other in relation to a
covenant or proposed covenant if, and only if:
(a) the first person is a body corporate and the second person is under an
obligation (otherwise than in pursuance of the covenant or proposed covenant),
whether formal or informal, to act in accordance with directions, instructions
or wishes of the first person in relation to the covenant or proposed covenant;
or
(b) the second person is a body corporate in relation to which
the first person is in the position mentioned in
subparagraph 4A(1)(a)(ii).
(8) The requiring by a person of the giving of, or the giving by a person
of, a covenant in relation to which subsection 88(5) applies is not a
contravention of subsection (2) of this section if:
(a) the covenant is subject to a condition that the covenant will not come
into force unless and until the person is granted an authorization to require
the giving of, or to give, the covenant; and
(b) the person applies for the grant of such an authorization within 14
days after the covenant is given;
but nothing in this subsection affects the application of
paragraph (2)(b) or (c) in relation to the covenant.
(9) This section does not apply to or in relation to a covenant or
proposed covenant if:
(a) the sole or principal purpose for which the covenant was or is
required to be given was or is to prevent the relevant land from being used
otherwise than for residential purposes;
(b) the person who required or requires the covenant to be given was or is
a religious, charitable or public benevolent institution or a trustee for such
an institution and the covenant was or is required to be given for or in
accordance with the purposes or objects of that institution; or
(c) the covenant was or is required to be given in pursuance of a legally
enforceable requirement made by, or by a trustee for, a religious, charitable or
public benevolent institution, being a requirement made for or in accordance
with the purposes or objects of that institution.
45C. Covenants
in relation to prices
(1) In the application of subsection 45B(1) in relation to a covenant that
has, or is likely to have, the effect of fixing, controlling or maintaining, or
providing for the fixing, controlling or maintaining of, the price for, or a
discount, allowance, rebate or credit in relation to, goods or services supplied
or acquired by the persons who are, or but for that subsection would be, bound
by or entitled to the benefit of the covenant, or by any of them, or by any
persons associated with any of them, in competition with each other, that
subsection has effect as if the words “if the covenant has, or is likely
to have, the effect of substantially lessening competition in any market in
which the first person or any person associated with the first person supplies
or acquires, or is likely to supply or acquire, goods or services or would, but
for the covenant, supply or acquire, or be likely to supply or acquire, goods or
services” were omitted.
(2) In the application of subsection 45B(2) in relation to a proposed
covenant that has the purpose, or would have or be likely to have the effect, of
fixing, controlling or maintaining, or providing for the fixing, controlling or
maintaining of, the price for, or a discount, allowance, rebate or credit in
relation to, goods or services supplied or acquired by the persons who would, or
would but for subsection 45B(1), be bound by or entitled to the benefit of
the proposed covenant, or by any of them, or by any persons associated with any
of them, in competition with each other, paragraph 45B(2)(a) has effect as if
all the words after the words “require the giving of a covenant, or give a
covenant” were omitted.
(3) For the purposes of this Act, a covenant shall not be taken not to
have, or not to be likely to have, the effect, or a proposed covenant shall not
be taken not to have the purpose, or not to have, or not to be likely to have,
the effect, of fixing, controlling or maintaining, or providing for the fixing,
controlling or maintaining of, the price for, or a discount, allowance, rebate
or credit in relation to, goods or services by reason only of:
(a) the form of the covenant or proposed covenant; or
(b) any description given to the covenant by any of the persons who are,
or but for subsection 45B(1) would be, bound by or entitled to the benefit of
the covenant or any description given to the proposed covenant by any of the
persons who would, or would but for subsection 45B(1), be bound by or entitled
to the benefit of the proposed covenant.
(4) For the purposes of the preceding provisions of this section, but
without limiting the generality of those provisions:
(a) a covenant shall be deemed to have, or to be likely to have, the
effect of fixing, controlling or maintaining, or providing for the fixing,
controlling or maintaining of, the price for, or a discount, allowance, rebate
or credit in relation to, goods or services supplied as mentioned in subsection
(1) if the covenant has, or is likely to have, the effect of fixing, controlling
or maintaining, or providing for the fixing, controlling or maintaining of, such
a price, discount, allowance, rebate or credit in relation to a re-supply of the
goods or services by persons to whom the goods or services are supplied by
the persons who are, or but for subsection 45B(1) would be, bound by or
entitled to the benefit of the covenant, or by any of them, or by any persons
associated with any of them; and
(b) a proposed covenant shall be deemed to have the purpose, or to have,
or to be likely to have, the effect, of fixing, controlling or maintaining, or
providing for the fixing, controlling or maintaining of, the price for, or a
discount, allowance, rebate or credit in relation to, goods or services supplied
as mentioned in subsection (2) if the proposed covenant has the purpose, or
would have or be likely to have the effect, as the case may be, of fixing,
controlling or maintaining, or providing for the fixing, controlling or
maintaining of, such a price, discount, allowance, rebate or credit in relation
to a re-supply of the goods or services by persons to whom the goods or services
are supplied by the persons who would, or would but for subsection 45B(1), be
bound by or entitled to the benefit of the proposed covenant, or by any of them,
or by any persons associated with any of them.
(5) The reference in subsection (1) to the supply or acquisition of goods
or services by persons in competition with each other includes a reference to
the supply or acquisition of goods or services by persons who, but for a
provision of any contract, arrangement or understanding or of any proposed
contract, arrangement or understanding, would be, or would be likely to be, in
competition with each other in relation to the supply or acquisition of the
goods or services.
45D. Secondary
boycotts for the purpose of causing substantial loss or damage
(1) A person must not, in concert with a second person, engage in
conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is
not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who
is not an employer of the first person or the second person); and
(b) that is engaged in for the purpose, and would have or be likely to
have the effect, of causing substantial loss or damage to the business of the
fourth person.
Note 1: Conduct that would otherwise
contravene this section can be authorised under subsection
88(7).
Note 2: This section also has effect subject
to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in
subsection (1) if the person engages in the conduct for purposes that include
that purpose.
45DA. Secondary
boycotts for the purpose of causing substantial lessening of
competition
(1) A person must not, in concert with a second person, engage in
conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is
not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who
is not an employer of the first person or the second person); and
(b) that is engaged in for the purpose, and would have or be likely to
have the effect, of causing a substantial lessening of competition in any market
in which the fourth person supplies or acquires goods or services.
Note 1: Conduct that would otherwise
contravene this section can be authorised under subsection
88(7).
Note 2: This section also has effect subject
to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in
subsection (1) if the person engages in the conduct for purposes that include
that purpose.
Note: This version of Part IV does not contain
an equivalent of section 45DB of the Trade Practices Act
1974.
45DC. Involvement
and liability of employee organisations
Certain organisations taken to be acting in
concert
(1) If 2 or more persons (the participants), each of whom is a member or
officer of the same organisation of employees, engage in conduct in concert with
one another, whether or not the conduct is also engaged in in concert with
another person, then, unless the organisation proves otherwise, the organisation
is taken for the purposes of sections 45D and 45DA:
(a) to engage in that conduct in concert with the participants;
and
(b) to have engaged in that conduct for the purposes for which the
participants engaged in it.
Consequences of organisation contravening subsection
45D(1) or 45DA(1)
(2) The consequences of an organisation of employees engaging, or being
taken by subsection (1) to engage, in conduct in concert with any of its
members or officers in contravention of subsection 45D(1) or 45DA(1) are as
set out in subsections (3), (4) and (5).
Loss or damage taken to have been caused by
organisation’s conduct
(3) Any loss or damage suffered by a person as a result of the conduct is
taken, for the purposes of this Act, to have been caused by the conduct of the
organisation.
Taking proceedings if organisation is a body
corporate
(4) If the organisation is a body corporate, no action under section 82 to
recover the amount of the loss or damage may be brought against any of the
members or officers of the organisation in respect of the conduct.
Taking proceedings if organisation is not a body
corporate
(5) If the organisation is not a body corporate:
(a) a proceeding in respect of the conduct may be brought under section
77, 80 or 82 against an officer of the organisation as a representative of the
organisation’s members and the proceeding is taken to be a proceeding
against all the persons who were members of the organisation at the time when
the conduct was engaged in; and
(b) subsection 76(2) does not prevent an order being made in a proceeding
mentioned in paragraph (a) that was brought under section 77; and
(c) the maximum pecuniary penalty that may be imposed in a proceeding
mentioned in paragraph (a) that was brought under section 77 is the penalty
applicable under section 76 in relation to a body corporate; and
(d) except as provided by paragraph (a), a proceeding in respect of the
conduct must not be brought under section 77 or 82 against any of the members or
officers of the organisation; and
(e) for the purpose of enforcing any judgment or order given or made in a
proceeding mentioned in paragraph (a) that was brought under section 77 or 82,
process may be issued and executed against the following property or interests
as if the organisation were a body corporate and the absolute owner of the
property or interests:
(i) any property of the organisation or of any branch or part of the
organisation, whether vested in trustees or however otherwise held;
(ii) any property in which the organisation or any branch or part of the
organisation has a beneficial interest, whether vested in trustees or however
otherwise held;
(iii) any property in which any members of the organisation or of a branch
or part of the organisation have a beneficial interest in their capacity as
members, whether vested in trustees or however otherwise held; and
(f) if paragraph (e) applies, no process is to be issued or executed
against any property of members or officers of the organisation or of a branch
or part of the organisation except as provided in that paragraph.
45DD. Situations
in which boycotts permitted
Dominant purpose of conduct relates to employment
matters—conduct by a person
(1) A person does not contravene, and is not involved in a contravention
of, subsection 45D(1) or 45DA(1) by engaging in conduct if the dominant purpose
for which the conduct is engaged in is substantially related to 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.
Dominant purpose of conduct relates to employment
matters—conduct by employee organisation and
employees
(2) If:
(a) an employee, or 2 or more employees who are employed by the same
employer, engage in conduct in concert with another person who is, or with other
persons each of whom is:
(i) an organisation of employees; or
(ii) an officer of an organisation of employees; and
(b) the conduct is only engaged in by the persons covered by paragraph
(a); and
(c) the dominant purpose for which the conduct is engaged in is
substantially related to the remuneration, conditions of employment, hours of
work or working conditions of the employee, or any of the employees, covered by
paragraph (a);
the persons covered by paragraph (a) do not contravene, and are not
involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in the
conduct.
Dominant purpose of conduct relates to environmental
protection or consumer protection
(3) A person does not contravene, and is not involved in a contravention
of, subsection 45D(1) or 45DA(1) by engaging in conduct if:
(a) the dominant purpose for which the conduct is engaged in is
substantially related to environmental protection or consumer protection;
and
(b) engaging in the conduct is not industrial action.
Note 1: If an environmental organisation or a
consumer organisation is a body corporate:
(a) it is a “person” who may be
subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also
be covered by this exemption; and
(b) each of its members is a
“person” who may be subject to the prohibitions in subsections
45D(1) and 45DA(1) and who may also be covered by this
exemption.
Note 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) and 45DA(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) and 45DA(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 an industrial 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 an industrial 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, industrial dispute and industrial
instrument have the meanings given by subsection 298B(1) of the
Workplace Relations Act 1996.
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) or 45DA(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.
Note: Section 170MT of the Workplace
Relations Act 1996 limits the right to bring actions under the Competition
Code 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).
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) 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.
No contravention if second person gives written consent
to written contract etc.
(4) Subsections (2) and (3) do not apply to a contract, arrangement or
understanding if it is in writing and was made or arrived at with the written
consent of the second person.
Meaning of accustomed to supply
(5) In this section, a reference to a person who has been accustomed to
supply goods or services to a second person includes (subject to subsection
(6)):
(a) a regular supplier of such goods or services to the second person;
or
(b) the latest supplier of such goods or services to the second person;
or
(c) a person who, at any time during the immediately preceding
3 months, supplied such goods or services to the second person.
Exception to subsection (5)
(6) If:
(a) goods or services have been supplied by a person to a second person
under a contract between them that required the first person to supply such
goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has been supplied with
such goods or services by another person and has not also been supplied with
such goods or services by the first person;
then, for the purposes of the application of this section in relation to
anything done after the second person has been supplied with goods or services
as mentioned in paragraph (c), the first person is not to be taken to be a
person who has been accustomed to supply such goods or services to the second
person.
Meaning of accustomed to acquire
(7) In this section, a reference to a person who has been accustomed to
acquire goods or services from a second person includes (subject to subsection
(8)):
(a) a regular acquirer of such goods or services from the second person;
or
(b) a person who, when last acquiring such goods or services, acquired
them from the second person; or
(c) a person who, at any time during the immediately preceding
3 months, acquired such goods or services from the second person.
Exception to subsection (7)
(8) If:
(a) goods or services have been acquired by a person from a second person
under a contract between them that required the first person to acquire such
goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has refused to supply
such goods or services to the first person;
then, for the purposes of the application of this section in relation to
anything done after the second person has refused to supply goods or services as
mentioned in paragraph (c), the first person is not to be taken to be a person
who has been accustomed to acquire such goods or services from the second
person.
Note: Conduct that would otherwise contravene
this section can be authorised under subsection 88(7A).
45EA. Provisions
contravening section 45E not to be given effect
A person must not give effect to a provision of a contract, arrangement
or understanding if, because of the provision, the making of the contract or
arrangement, or the arriving at the understanding, by the person:
(a) contravened subsection 45E(2) or (3); or
(b) would have contravened subsection 45E(2) or (3) if:
(i) section 45E had been in force when the contract or arrangement was
made, or the understanding was arrived at; and
(ii) the words “is in writing and” and “written”
were not included in subsection 45E(4).
Note: Conduct that would otherwise contravene
this section can be authorised under subsection 88(7A).
45EB. Sections
45D to 45EA do not affect operation of other provisions of Part
Nothing in section 45D, 45DA, 45DC, 45DD, 45E or 45EA affects the
operation of any other provision of this Part.
(1) A person (the first person) who has a substantial degree of power in a
market shall not take advantage of that power for the purpose of:
(a) eliminating or substantially damaging a competitor of the first person
or of a body corporate that is related to the first person in that or any other
market;
(b) preventing the entry of a person into that or any other market;
or
(c) deterring or preventing a person from engaging in competitive conduct
in that or any other market.
(1A) For the purposes of subsection (1):
(a) the reference in paragraph (1)(a) to a competitor includes a reference
to competitors generally, or to a particular class or classes of competitors;
and
(b) the reference in paragraphs (1)(b) and (c) to a person includes a
reference to persons generally, or to a particular class or classes of
persons.
(2) If:
(a) a body corporate that is related to a person (the first person) has,
or 2 or more bodies corporate each of which is related to the one person (the
first person) together have, a substantial degree of power in a market;
or
(b) a person (the first person) and a body corporate that is, or a person
(the first person) and 2 or more bodies corporate each of which is, related to
the first person, together have a substantial degree of power in a
market;
the first person shall be taken for the purposes of this section to have
a substantial degree of power in that market.
(3) In determining for the purposes of this section the degree of power
that a person (the first person) or bodies corporate has or have in a market,
the Court shall have regard to the extent to which the conduct of the first
person or of any of those bodies corporate in that market is constrained by the
conduct of:
(a) competitors, or potential competitors, of the first person or of any
of those bodies corporate in that market; or
(b) persons to whom or from whom the first person or any of those bodies
corporate supplies or acquires goods or services in that market.
(4) In this section:
(a) a reference to power is a reference to market power;
(b) a reference to a market is a reference to a market for goods or
services; and
(c) a reference to power in relation to, or to conduct in, a market is a
reference to power, or to conduct, in that market either as a supplier or as an
acquirer of goods or services in that market.
(5) Without extending by implication the meaning of subsection (1), a
person shall not be taken to contravene that subsection by reason only that the
person acquires plant or equipment.
(6) This section does not prevent a person from engaging in conduct that
does not constitute a contravention of any of the following sections, namely,
sections 45, 45B, 47 and 50, by reason that an authorization is in force or by
reason of the operation of section 93.
(7) Without in any way limiting the manner in which the purpose of a
person may be established for the purposes of any other provision of this Act, a
person may be taken to have taken advantage of the person’s power for a
purpose referred to in subsection (1) notwithstanding that, after all the
evidence has been considered, the existence of that purpose is ascertainable
only by inference from the conduct of the person or of any other person or from
other relevant circumstances.
(1) Subject to this section, a person shall not, in trade or commerce,
engage in the practice of exclusive dealing.
(2) A person (the first person) engages in the practice of exclusive
dealing if the first person:
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular
price; or
(c) gives or allows, or offers to give or allow, a discount, allowance,
rebate or credit in relation to the supply or proposed supply of goods or
services by the first person;
on the condition that the person (the second person) to whom the first
person supplies, or offers or proposes to supply, the goods or services or, if
the second person is a body corporate, a body corporate related to that body
corporate:
(d) will not, or will not except to a limited extent, acquire goods or
services, or goods or services of a particular kind or description, directly or
indirectly from a competitor of the first person or from a competitor of a body
corporate related to the first person;
(e) will not, or will not except to a limited extent, re-supply goods or
services, or goods or services of a particular kind or description, acquired
directly or indirectly from a competitor of the first person or from a
competitor of a body corporate related to the first person; or
(f) in the case where the first person supplies or would supply goods or
services, will not re-supply the goods or services to any person, or will not,
or will not except to a limited extent, re-supply the goods or
services:
(i) to particular persons or classes of persons or to persons other than
particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than
particular places or classes of places.
(3) A person (the first person) also engages in the practice of exclusive
dealing if the first person refuses:
(a) to supply goods or services to a second person;
(b) to supply goods or services to a second person at a particular price;
or
(c) to give or allow a discount, allowance, rebate or credit in relation
to the supply or proposed supply of goods or services to a second
person;
for the reason that the second person or, if the second person is a body
corporate, a body corporate related to that body corporate:
(d) has acquired, or has not agreed not to acquire, goods or services, or
goods or services of a particular kind or description, directly or indirectly
from a competitor of the first person or from a competitor of a body corporate
related to the first person;
(e) has re-supplied, or has not agreed not to re-supply, goods or
services, or goods or services of a particular kind or description, acquired
directly or indirectly from a competitor of the first person or from a
competitor of a body corporate related to the first person; or
(f) has re-supplied, or has not agreed not to re-supply, goods or
services, or goods or services of a particular kind or description, acquired
from the first person to any person, or has re-supplied, or has not agreed not
to re-supply, goods or services, or goods or services of a particular kind or
description, acquired from the first person:
(i) to particular persons or classes of persons or to persons other than
particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than
particular places or classes of places.
(4) A person (the first person) also engages in the practice of exclusive
dealing if the first person:
(a) acquires, or offers to acquire, goods or services; or
(b) acquires, or offers to acquire, goods or services at a particular
price;
on the condition that the person (the second person) from whom the first
person acquires or offers to acquire the goods or services or, if the second
person is a body corporate, a body corporate related to that body corporate will
not supply goods or services, or goods or services of a particular kind or
description, to any person, or will not, or will not except to a limited extent,
supply goods or services, or goods or services of a particular kind or
description:
(c) to particular persons or classes of persons or to persons other than
particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than
particular places or classes of places.
(5) A person (the first person) also engages in the practice of exclusive
dealing if the first person refuses:
(a) to acquire goods or services from a second person; or
(b) to acquire goods or services at a particular price from a second
person;
for the reason that the second person or, if the second person is a body
corporate, a body corporate related to that body corporate has supplied, or has
not agreed not to supply, goods or services, or goods or services of a
particular kind or description:
(c) to particular persons or classes of persons or to persons other than
particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than
particular places or classes of places.
(6) A person (the first person) also engages in the practice of exclusive
dealing if the first person:
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular
price; or
(c) gives or allows, or offers to give or allow, a discount, allowance,
rebate or credit in relation to the supply or proposed supply of goods or
services by the first person;
on the condition that the person (the second person) to whom the first
person supplies or offers or proposes to supply the goods or services or, if the
second person is a body corporate, a body corporate related to that body
corporate will acquire goods or services of a particular kind or description
directly or indirectly from another person.
(7) A person (the first person) also engages in the practice of exclusive
dealing if the first person refuses:
(a) to supply goods or services to a second person;
(b) to supply goods or services at a particular price to a second person;
or
(c) to give or allow a discount, allowance, rebate or credit in relation
to the supply of goods or services to a second person;
for the reason that the second person or, if the second person is a body
corporate, a body corporate related to that body corporate has not acquired, or
has not agreed to acquire, goods or services of a particular kind or description
directly or indirectly from another person.
(8) A person (the first person) also engages in the practice of exclusive
dealing if the first person grants or renews, or makes it known that the first
person will not exercise a power or right to terminate, a lease of, or a licence
in respect of, land or a building or part of a building on the condition that
another party to the lease or licence or, if that other party is a body
corporate, a body corporate related to that body corporate:
(a) will not, or will not except to a limited extent:
(i) acquire goods or services, or goods or services of a particular kind
or description, directly or indirectly from a competitor of the first person or
from a competitor of a body corporate related to the first person; or
(ii) re-supply goods or services, or goods or services of a particular
kind or description, acquired directly or indirectly from a competitor of the
first person or from a competitor of a body corporate related to the first
person;
(b) will not supply goods or services, or goods or services of a
particular kind or description, to any person, or will not, or will not except
to a limited extent, supply goods or services, or goods or services of a
particular kind or description:
(i) to particular persons or classes of persons or to persons other than
particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than
particular places or classes of places; or
(c) will acquire goods or services of a particular kind or description
directly or indirectly from another person not being a body corporate related to
the first person.
(9) A person (the first person) also engages in the practice of exclusive
dealing if the first person refuses to grant or renew, or exercises a power or
right to terminate, a lease of, or a licence in respect of, land or a building
or part of a building for the reason that another party to the lease or licence
or, if that other party is a body corporate, a body corporate related to that
body corporate:
(a) has acquired, or has not agreed not to acquire, goods or services, or
goods or services of a particular kind or description, directly or indirectly
from a competitor of the first person or from a competitor of a body corporate
related to the first person;
(b) has re-supplied, or has not agreed not to re-supply, goods or
services, or goods or services of a particular kind or description, acquired
directly or indirectly from a competitor of the first person or from a
competitor of a body corporate related to the first person;
(c) has supplied goods or services, or goods or services of a particular
kind or description:
(i) to particular persons or classes of persons or to persons other than
particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than
particular places or classes of places; or
(d) has not acquired, or has not agreed to acquire, goods or services of a
particular kind or description directly or indirectly from another person not
being a body corporate related to the first person.
(10) Subsection (1) does not apply to the practice of exclusive dealing
constituted by a person engaging in conduct of a kind referred to in subsection
(2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b) or (c)
unless:
(a) the engaging by the person in that conduct has the purpose, or has or
is likely to have the effect, of substantially lessening competition;
or
(b) the engaging by the person in that conduct, and the engaging by the
person, or by a body corporate related to the person, in other conduct of the
same or a similar kind, together have or are likely to have the effect of
substantially lessening competition.
(10A) Subsection (1) does not apply to a person engaging in conduct
described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:
(a) the person has given the Commission a notice under subsection 93(1)
describing the conduct; and
(b) the notice is in force under section 93.
(11) Subsections (8) and (9) do not apply with respect to:
(a) conduct engaged in by, or by a trustee for, a religious, charitable or
public benevolent institution, being conduct engaged in for or in accordance
with the purposes or objects of that institution; or
(b) conduct engaged in in pursuance of a legally enforceable requirement
made by, or by a trustee for, a religious, charitable or public benevolent
institution, being a requirement made for or in accordance with the purposes or
objects of that institution.
(12) Subsection (1) does not apply with respect to any conduct engaged in
by a body corporate by way of restricting dealings by another body corporate if
those bodies corporate are related to each other.
(13) In this section:
(a) a reference to a condition shall be read as a reference to any
condition, whether direct or indirect and whether having legal or equitable
force or not, and includes a reference to a condition the existence or nature of
which is ascertainable only by inference from the conduct of persons or from
other relevant circumstances;
(b) a reference to competition, in relation to conduct to which a
provision of this section other than subsection (8) or (9) applies, shall be
read as a reference to competition in any market in which:
(i) the person engaging in the conduct or any body corporate related to
that person; or
(ii) any person whose business dealings are restricted, limited or
otherwise circumscribed by the conduct or, if that person is a body corporate,
any body corporate related to that body corporate;
supplies or acquires, or is likely to supply or acquire, goods or
services or would, but for the conduct, supply or acquire, or be likely to
supply or acquire, goods or services; and
(c) a reference to competition, in relation to conduct to which subsection
(8) or (9) applies, shall be read as a reference to competition in any market in
which the person engaging in the conduct or any other person whose business
dealings are restricted, limited or otherwise circumscribed by the conduct, or
any body corporate related to either of those persons, supplies or acquires, or
is likely to supply or acquire, goods or services or would, but for the conduct,
supply or acquire, or be likely to supply or acquire, goods or
services.
A person shall not engage in the practice of resale price
maintenance.
50. Prohibition
of acquisitions that would result in a substantial lessening of
competition
(1) A person must not directly or indirectly:
(a) acquire shares in the capital of a body corporate; or
(b) acquire any assets of a person;
if the acquisition would have the effect, or be likely to have the
effect, of substantially lessening competition in a market.
(3) Without limiting the matters that may be taken into account for the
purposes of subsection (1) in determining whether the acquisition would have the
effect, or be likely to have the effect, of substantially lessening competition
in a market, the following matters must be taken into account:
(a) the actual and potential level of import competition in the
market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would result in the acquirer being
able to significantly and sustainably increase prices or profit
margins;
(f) the extent to which substitutes are available in the market or are
likely to be available in the market;
(g) the dynamic characteristics of the market, including growth,
innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal from
the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.
(4) Where:
(a) a person has entered into a contract to acquire shares in the capital
of a body corporate or assets of a person;
(b) the contract is subject to a condition that the provisions of the
contract relating to the acquisition will not come into force unless and until
the person has been granted an authorization to acquire the shares or assets;
and
(c) the person applied for the grant of such an authorization before the
expiration of 14 days after the contract was entered into;
the acquisition of the shares or assets shall not be regarded for the
purposes of this Act as having taken place in pursuance of the contract
before:
(d) the application for the authorization is disposed of; or
(e) the contract ceases to be subject to the condition;
whichever first happens.
(5) For the purposes of subsection (4), an application for an
authorization shall be taken to be disposed of:
(a) in a case to which paragraph (b) of this subsection does not
apply—at the expiration of 14 days after the period in which an
application may be made to the Tribunal for a review of the determination by the
Commission of the application for the authorization; or
(b) if an application is made to the Tribunal for a review of the
determination by the Commission of the application for the
authorization—at the expiration of 14 days after the date of the making by
the Tribunal of a determination on the review.
(6) In this section:
market means a substantial market for goods or services
in:
(a) Australia; or
(b) a State; or
(c) a Territory; or
(d) a region of Australia.
(1) In deciding whether a person has contravened this Part, the following
must be disregarded:
(a) anything that is disregarded for the purposes of Part IV of the
Trade Practices Act 1974 because of subsection 51(1) of that
Act;
(b) anything done in a State, if the thing is specified in, and
specifically authorised by:
(i) an Act passed by the Parliament of that State; or
(ii) regulations made under such an Act;
(c) anything done in the Australian Capital Territory, if the thing is
specified in, and specifically authorised by:
(i) an enactment as defined in section 3 of the Australian Capital
Territory (Self-Government) Act 1988; or
(ii) regulations made under such an enactment;
(d) anything done in the Northern Territory, if the thing is specified in,
and specifically authorised by:
(i) an enactment as defined in section 4 of the Northern Territory
(Self-Government) Act 1978; or
(ii) regulations made under such an enactment;
(e) anything done in another Territory, if the thing is specified in, and
specifically authorised by:
(i) an Ordinance of that Territory; or
(ii) regulations made under such an Ordinance.
(1A) Without limiting subsection (1), conduct is taken to be specified in,
and authorised by, a law for the purposes of that subsection if:
(a) a licence or other instrument issued or made under the law specifies
one or both of the following:
(i) the person authorised to engage in the conduct;
(ii) the place where the conduct is to occur; and
(b) the law specifies the attributes of the conduct except those mentioned
in paragraph (a).
For this purpose, law means a State Act, enactment or
Ordinance.
(1B) Subsections (1) and (1A) apply regardless of when the State Acts,
enactments, Ordinances, regulations or instruments referred to in those
subsections were passed, made or issued.
(1C) The operation of subsection (1) (other than paragraph (1)(a)) is
subject to the following limitations:
(a) in order for something to be regarded as specifically authorised for
the purposes of subsection (1), the authorising provision must expressly refer
to the Competition Code;
(b) paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a
person has contravened section 50;
(c) regulations referred to in subparagraph (1)(b)(ii), (c)(ii), (d)(ii)
or (e)(ii) do not have the effect of requiring a particular thing to be
disregarded if the thing happens more than 2 years after those regulations came
into operation;
(d) regulations referred to in subparagraph (1)(b)(ii), (c)(ii) or (d)(ii)
do not have the effect of requiring a particular thing to be disregarded to the
extent that the regulations are the same in substance as other regulations
that:
(i) were made for the purposes of the subparagraph concerned;
and
(ii) came into operation more than 2 years before the particular thing
happened.
(2) In determining whether a contravention of a provision of this Part
other than section 45D, 45DA, 45E, 45EA or 48 has been committed, regard shall
not be had:
(a) to any act done in relation to, or to the making of a contract or
arrangement or the entering into of an understanding, or to any provision of a
contract, arrangement or understanding, to the extent that the contract,
arrangement or understanding, or the provision, relates to, the remuneration,
conditions of employment, hours of work or working conditions of
employees;
(b) to any provision of a contract of service or of a contract for the
provision of services, being a provision under which a person, not being a body
corporate, agrees to accept restrictions as to the work, whether as an employee
or otherwise, in which he or she may engage during, or after the termination of,
the contract;
(c) to any provision of a contract, arrangement or understanding, being a
provision obliging a person to comply with or apply standards of dimension,
design, quality or performance prepared or approved by Standards Australia
International Limited or by a prescribed association or body;
(d) to any provision of a contract, arrangement or understanding between
partners none of whom is a body corporate, being a provision in relation to the
terms of the partnership or the conduct of the partnership business or in
relation to competition between the partnership and a party to the contract,
arrangement or understanding while he or she is, or after he or she ceases to
be, a partner;
(e) in the case of a contract for the sale of a business or of shares in
the capital of a body corporate carrying on a business—to any provision of
the contract that is solely for the protection of the purchaser in respect of
the goodwill of the business; or
(g) to any provision of a contract, arrangement or understanding, being a
provision that relates exclusively to the export of goods from Australia or to
the supply of services outside Australia, if full and accurate particulars of
the provision (not including particulars of prices for goods or services but
including particulars of any method of fixing, controlling or maintaining such
prices) were furnished to the Commission before the expiration of 14 days after
the date on which the contract or arrangement was made or the understanding was
arrived at, or before 8 September 1976, whichever was the later.
(2A) In determining whether a contravention of a provision of this Part
other than section 48 has been committed, regard shall not be had to any acts
done, otherwise than in the course of trade or commerce, in concert by ultimate
users or consumers of goods or services against the suppliers of those goods or
services.
(3) A contravention of a provision of this Part other than section 46
or 48 shall not be taken to have been committed by reason of:
(a) the imposing of, or giving effect to, a condition of:
(i) a licence granted by the proprietor, licensee or owner of a patent, of
a registered design, of a copyright or of EL rights within the meaning of the
Circuit Layouts Act 1989, or by a person who has applied for a
patent or for the registration of a design; or
(ii) an assignment of a patent, of a registered design, of a copyright or
of such EL rights, or of the right to apply for a patent or for the registration
of a design;
to the extent that the condition relates to:
(iii) the invention to which the patent or application for a patent
relates or articles made by the use of that invention;
(iv) goods in respect of which the design is, or is proposed to be,
registered and to which it is applied;
(v) the work or other subject matter in which the copyright subsists;
or
(vi) the eligible layout in which the EL rights subsist;
(b) the inclusion in a contract, arrangement or understanding authorizing
the use of a certification trade mark of a provision in accordance with rules
applicable under Part XI of the Trade Marks Act 1955, or the giving
effect to such a provision; or
(c) the inclusion in a contract, arrangement or understanding
between:
(i) the registered proprietor of a trade mark other than a certification
trade mark; and
(ii) a person registered as a registered user of that trade mark under
Part IX of the Trade Marks Act 1955 or a person authorized by the
contract to use the trade mark subject to his or her becoming registered as such
a registered user;
of a provision to the extent that it relates to the kinds, qualities or
standards of goods bearing the mark that may be produced or supplied, or the
giving effect to the provision to that extent.
(4) This section applies in determining whether a provision of a contract
is unenforceable by reason of subsection 45(1), or whether a covenant is
unenforceable by reason of subsection 45B(1), in like manner as it applies
in determining whether a contravention of a provision of this Part has been
committed.
1 This is a compilation of the Competition Policy Reform
(Western Australia) Act 1996 and includes the amendments made by the
other written laws referred to in the following table. The table also contains
information about any reprint.
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
52 of 1996 |
31 Oct 1996 |
21 Jul 1996 (see s. 2) |
|
|
32 of 1999 |
13 Jul 1999 |
13 Jul 1999
(see s. 2(1)) |
|
|
New Tax System Price Exploitation Code (Western
Australia) Act 1999 s. 37 |
51 of 1999 |
7 Dec 1999 |
17 Dec 1999 (see s. 2 and Gazette
17 Dec 1999 p. 6176) |
|
Reprint of the Competition Policy Reform (Western
Australia) Act 1996 as at 6 Jul
2001 |
|||
|
Acts Amendment (Federal Courts and Tribunals)
Act 2001 Pt. 2 3 |
32 of 2001 |
21 Dec 2001 |
21 Dec 2001 (see s. 2(1)) |
|
Statutes (Repeals and Minor Amendments) Act 2003
s. 38 |
74 of 2003 |
15 Dec 2003 |
15 Dec 2003 (see s. 2) |
|
Courts Legislation Amendment and Repeal Act 2004
s. 141 |
59 of 2004 |
23 Nov 2004 |
1 May 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7128) |
|
State Administrative Tribunal (Conferral of Jurisdiction)
Amendment and Repeal Act 2004
Pt. 2 Div. 23 4 |
55 of 2004 |
24 Nov 2004 |
1 Jan 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7130) |
|
Criminal Procedure and Appeals (Consequential and Other
Provisions) Act 2004 s. 80 |
84 of 2004 |
16 Dec 2004 |
2 May 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7129 (correction in Gazette
7 Jan 2005 p. 53)) |
|
Reprint 2: The Competition Policy Reform (Western
Australia) Act 1996 as at 2 Dec 2005 (includes amendments
listed above) |
|||
|
Machinery of Government (Miscellaneous Amendments)
Act 2006 Pt. 4 Div. 6 5 |
28 of 2006 |
26 Jun 2006 |
1 Jul 2006 (see s. 2 and Gazette
27 Jun 2006 p. 2347) |
2 The Federal Courts (State Jurisdiction) Act 1999
s. 18, which would have amended this Act, did not come into operation and
was repealed by the Acts Amendment (Federal Courts and Tribunals)
Act 2001 s. 16.
3 Section 39 of this Act had not come into operation when
it was deleted by the Statutes (Repeals and Miscellaneous Amendments)
Act 2009 s. 16.
4 The State Administrative Tribunal (Conferral of
Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State
Administrative Tribunal Act 2004 s. 167 and 169, and the State
Administrative Tribunal Regulations 2004 r. 28 and 42 deal with
certain transitional issues some of which may be relevant for this
Act.
5 The Machinery of Government (Miscellaneous Amendments)
Act 2006 Pt. 4 Div. 23 reads as follows:
“
Division
23 — Transitional provisions
151. Commissioner
for Fair Trading
(1) On commencement, the person holding the office of Commissioner for
Fair Trading immediately before commencement is to be taken to have been
designated as the Commissioner or Registrar (as the case requires) for the
purposes of each of the following enactments —
(a) the Associations Incorporation
Act 1987;
(b) the Business Names Act 1962;
(c) the Chattel Securities Act 1987;
(d) the Companies (Co-operative) Act 1943;
(e) Part 8 of the Competition Policy Reform (Western Australia)
Act 1996;
(f) the Consumer Affairs Act 1971;
(g) the Co-operative and Provident Societies
Act 1903;
(h) the Credit Act 1984;
(i) the Credit (Administration) Act 1984;
(j) the Employment Agents Act 1976;
(k) the Hire-Purchase Act 1959;
(l) the Limited Partnerships Act 1909;
(m) the Motor Vehicle Dealers Act 1973;
(n) the Petroleum Products Pricing Act 1983;
(o) the Petroleum Retailers Rights and Liabilities
Act 1982;
(p) the Residential Tenancies Act 1987;
(q) the Retirement Villages Act 1992;
(r) the Travel Agents Act 1985.
(2) A thing done or omitted to be done by, to or in relation to, the
Commissioner for Fair Trading (including in his or her capacity as the Prices
Commissioner) before commencement under a provision of the Consumer Affairs
Act 1971 for the purposes of another enactment listed in
subsection (1) has the same effect after commencement, to the extent that
it has any force or significance after commencement, as if it had been done or
omitted —
(a) by, to or in relation to, the Commissioner or Registrar (as the case
requires) as defined in that other enactment as in force after commencement;
and
(b) where relevant, under the corresponding provision of that other
enactment as in force after commencement.
(3) To the extent that a thing done or omitted to be done by, to or in
relation to, the Commissioner for Fair Trading (including in his or her capacity
as the Prices Commissioner) before commencement under, or for the purposes of,
an enactment listed in subsection (1) is not covered by
subsection (2), it has the same effect after commencement, to the extent
that it has any force or significance after commencement, as if it had been done
or omitted by, to or in relation to, the Commissioner or Registrar (as the case
requires) as defined in that enactment as in force after commencement.
(4) A thing done or omitted to be done by, to or in relation to, the
Commissioner for Fair Trading before commencement under, or for the purposes of,
an enactment not listed in subsection (1) has the same effect after
commencement, to the extent that it has any force or significance after
commencement, as if it had been done or omitted by, to or in relation to, the
Commissioner as defined in the Consumer Affairs Act 1971 as in force
after commencement.
(5) A reference in an enactment to the Commissioner for Fair Trading is to
have effect after commencement as if it had been amended to be a reference
to —
(a) in the case of an enactment listed in subsection (1) or
subsidiary legislation made under such an enactment — the
Commissioner or Registrar (as the case requires) as defined in the enactment as
in force after commencement; or
(b) in the case of any other enactment or subsidiary
legislation — the Commissioner as defined in the Consumer Affairs
Act 1971 as in force after commencement.
152. Commissioner
for Corporate Affairs and Registrar of Co-operative and Financial
Institutions
(1) A thing done or omitted to be done by, to or in relation to, the
Commissioner for Corporate Affairs before commencement under, or for the
purposes of, the Companies (Co-operative) Act 1943 has the same
effect after commencement as if it had been done or omitted by, to or in
relation to, the Registrar as defined in that Act as in force after
commencement.
(2) A thing done or omitted to be done by, to or in relation to, the
Registrar of Co-operative and Financial Institutions before commencement under,
or for the purposes of, the Co-operative and Provident Societies
Act 1903 has the same effect after commencement as if it had been done
or omitted by, to or in relation to, the Registrar as defined in that Act as in
force after commencement.
153. Consumer
Affairs Act 1971
Each office in existence immediately before commencement because of
section 15(1) of the Consumer Affairs Act 1971 does not cease
merely because that subsection is repealed by this Act.
154. Petroleum
Products Pricing Act 1983
Each office in existence immediately before commencement because of
section 5(2)(b) of the Petroleum Products Pricing Act 1983 does
not cease merely because that paragraph is deleted by this Act.
In this Division —
commencement means the time at which this Division comes
into operation;
Commissioner for Fair Trading means the Commissioner for
Fair Trading referred to in section 15 of the Consumer Affairs
Act 1971 as in force before commencement;
Prices Commissioner means the Prices Commissioner referred
to in section 5(1) of the Petroleum Products Pricing Act 1983
as in force before commencement.
”.