By Charles Power

In Aldi Foods v TWU (2020), an employer claimed that pamphlets, flyers and various media releases distributed by a union as part of an industrial campaign contravened Australian Consumer Law. Specifically, the employer argued that the union contravened the provision that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive.

The content of the union’s campaign concerned drivers’ pay and conditions. It alleged that the contracts Aldi holds with trucking companies result in drivers being underpaid and put under pressure. This causes the drivers to speed and drive long hours without proper breaks, affecting transport safety. These were considered matters directly related to the industrial interests of the union’s members.

The Court rejected the argument that the union’s conduct was in trade or commerce because it was intended to discourage consumers from shopping at the employer’s sites or purchase its products. The Court noted that even in circumstances where the misleading conduct may affect or may be intended to affect consumer choice around the products and places they purchase from, this will not in itself support a finding that the misleading conduct is in trade or commerce. While the conduct certainly relates to trade or commerce, it will not be in trade or commerce unless in some relevant way the conduct can be said to be an activity that bears a trading or commercial character. It was found that mere advocacy of a social, industrial or political cause is not such an activity. It was also noted that the dividing line between what is and what is not conduct in trade or commerce may sometimes be unclear. However, it was found that this was a clear case.

The employer also argued that since the union’s objective is to advance the industrial interests of its members, it is a trading or commercial activity. The Court rejected this argument. The fact that union members pay membership fees to the union does not convert the union’s core activities (industrial advocacy) into a commercial or business activity. However, the Court was clear that it was not suggesting a union incapable of offering service for reward, giving the example of a union offering training in exchange for reward, thereby limiting its conclusion to rejecting the contention that industrial advocacy is a commercial or business activity.