Do We Have an Understanding? High Court Rules Against ACCC in Appeal Regarding Anti-Competitive Understanding

By: Eimear O’Sullivan, Christina Shin, Alice Waterston & Peta Stevenson (King & Wood Mallesons)

In this short article, Eimear O’Sullivan, Christina Shin, Alice Waterston, and Peta Stevenson summarize the main points from the High Court’s ruling in the ACCC’s case against J Hutchinson Pty Ltd and the CFMEU.

On April 2, 2025, the High Court majority rejected the ACCC’s appeal of the Full Federal Court’s earlier decision in its case against construction company J Hutchinson Pty Ltd (Hutchinson) and the Construction, Forestry and Maritime Employees Union (CFMEU).

The ruling clarifies that an “understanding” between parties is not formed merely because one party chooses to act in response to another’s demand, even when that demand is backed by a threat. Instead, there must be evidence of a mutual agreement or a ‘meeting of the minds’ to prove an understanding—unless one party has explicitly waived the need for the other’s express agreement.

This outcome confirms the previous successful appeal by Hutchinson and the CFMEU against a Federal Court finding that they had breached sections 45E(3) and 45EA of the Competition and Consumer Act 2010 (CCA) by entering into an anti-competitive arrangement involving a ‘secondary boycott’ of a third party’s services…

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