Both sides score points but ruling hinges on 'trade or commerce' definition
A three-year legal battle between Aldi and Transport Workers Union (TWU) ends with the Federal Court dismissing the supermarket giant’s claims against the union.
Aldi pursued the TWU over a series of protest actions by the union starting in 2017 – including picketing Aldi stores and issuing media releases – which it claims equated to misleading or deceptive conduct and injurious falsehood.
It had earlier dropped other charges relating to trespass, nuisance and reputational damage.
Section 18 of the Australian Consumer Law rules: “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”.
Ultimately, Justice Geoffrey Flick ruled the union is not a “trading corporation” and that such statements as were made by it were not made in “trade or commerce”, adding that while the protest campaign was likely to ‘injure’ Aldi, that alone was not the reason for TWU’s actions.
“Although injury to the business operations of Aldi may have been the inevitable consequence of the conduct of the Union, it may be queried whether that necessarily translates into an actual intent to injure and malice,” he says.
“The concerns as to road safety being expressed by the Union, it may readily be accepted, were concerns which it genuinely held; so, too, may it readily be accepted that the Union genuinely held views that Aldi could do more to further the company’s concerns as to road safety.”
How the TWU and Aldi put their safety cases forward, here
Justice Flick accepted that “forefront to the mind of Aldi was the prospect of ‘cutting costs’” and it did “not check and [had] no idea whether the amount paid to a supplier or a transport operator [was] sufficient to permit the transport task to be undertaken safely”.
“There is also no doubt that ALDI was seeking to carry out its transport operations in a highly efficient manner and that that objective put ‘pressure’ on those involved in the transport activities,” he adds.
“The pressure put on drivers transporting Aldi goods inevitably, but regrettably, occasioned contraventions by drivers of safety standards imposed by Aldi.”
However, he also acknlowledged that “contraventions by all drivers was a matter of concern to Aldi” which responded via “remedial action”.
Justice Flick took exception to TWU statements associating Aldi with “hundreds of people [dying] on our roads in truck related accidents”, which he deemed at the very least was “likely to mislead”.
While acknowledging “evidence that Aldi was putting ‘pressure’” on drivers, he adds “there is no evidence that Aldi for the period in question . . . was responsible for any current fatalities let alone ‘a spike in road deaths from truck crashes’”.
RESPONSES
The union had argued that the case, brought forward by a company against a non-government organisation, threatened freedom of speech by potentially leading to “civil society groups being gagged against raising issues to do with human rights, environmental and worker abuses”.
TWU national secretary Michael Kaine is bullish in his reaction to the judgement.
“Aldi, a global retailer, tried to take on Australian truck drivers in a lengthy and costly legal battle and it failed,” Kaine says in a statement.
“This case shows that companies like Aldi will try every law in the land to shut workers up but eventually the truth comes out.
“We will now write to Aldi asking them to meet us and discuss how they can make their supply chains safe.
“We hope they will take us up on this offer and help save lives.”
To the contrary, Aldi’s view is the case was never about stifling free speech or the union movement, and the ruling portrays it in a positive light.
“We feel vindicated with today’s judgement, as it has clearly been stated by the court that the TWU’s conduct has been misleading and deceptive,” a spokesperson says.
“The court also recognised the quality of our transport safety procedures.
“We do the right thing in our transport operations not because of pressure from outside parties or to meet regulatory requirements, we focus on the highest safety standards because it is consistent with one of our company’s core values – Responsibility.
“The judgement determined that this legal action was justified in protecting ALDI’s commercial interests and was never about silencing Australian workers.
“It is disappointing that a legal technicality appears to allow the TWU to peddle lies and mistruths with impunity.”