2025 has been a busy year for ACCC enforcement of cartel cases in the construction and infrastructure industries. The Chair of the ACCC recently mentioned that its cartel enforcement cases are at the ’core of markets that matter to Australians’ – with the construction and infrastructure sectors singled out as examples ‘that underpin our economy’.
A cartel involves direct competitors agreeing to limit the way they compete with each other. The Competition and Consumer Act 2010 (Cth) prohibit contracts, arrangements or understandings between competitors that contain a cartel provision. A cartel provision can include price fixing, restricting output, bid rigging or market sharing.
Earlier this year, the ACCC confirmed that investigations of anti-competitive conduct and cartels remain an enduring priority (see our Insight here). At the same time, the ACCC foreshadowed it had a ‘robust pipeline’ of cartel investigations, several of which were ‘well-advanced’. Over the last few weeks, the ACCC’s warnings have played out with a success for the ACCC in the full Federal Court against building management system provider Delta Building Automation Pty Ltd (Delta), and the announcement of new cartel proceedings.
These developments all follow amendments to the ACCC immunity and cooperation policy for cartel conduct in December 2024 to further strengthen this key tool for uncovering cartel conduct.
The ACCC’s focus coincides with investigations and criminal proceedings in New Zealand concerning alleged cartels in the construction space (with two construction companies and related individuals in New Zealand recently pleading guilty) and fines imposed on construction companies by the Competition & Consumer Commission of Singapore for bid rigging.
Below is a summary of these recent developments and links to our past blog posts in case you want to read more.
Federal Court dismisses appeal on bid rigging attempt by Delta Building Automation
On 29 August 2025, the Full Federal Court dismissed an appeal by Delta concerning an attempt to rig tenders with a competitor Logical Electrical Solutions Pty Ltd (LES) for building management systems at the National Gallery of Australia. The Court found that Delta’s managing director offered a payment to LES in return for not making a competitive bid for the tender. The attempt to rig the tender was unsuccessful because the competitor rejected the offer.
The case turned on a 15 to 20 minute conversation in a café. The key parts of the conversation between Mr Davis (Delta) and Mr McEvilly (LES) were as follows:
Mr Davis: Look mate, I know you’ve had a long association with the gallery. To appease you, I would like to offer you a payment so that you are not wasting your time. The tender is going to be released early in the New Year. There will only be two tenderers and I am confident to win even from second place.
Mr McEvilly: Who do you know at the gallery?
Mr Davis: You know I can’t tell you that.
Mr McEvilly: Look Tim, thanks for the offer but, if we get the opportunity to tender for this project, we will do our best to put forward a competitive bid in an attempt to win it. I won’t be doing anything else.
…
Mr Davis: I may give you a call when the tender comes out, depending on the format.
Mr McEvilly: Look okay mate whatever.
The failed appeal means Delta must pay $1.5 million and its managing director must pay $120,000 in fines, in addition to paying for the ACCC’s costs and implementing a competition law compliance program.
The case confirmed that an attempt to form a cartel requires two elements to be satisfied:
- Conduct: There must be a ‘step towards’ forming a cartel. Mere persuasion – even without a promise or a threat – is likely sufficient. Importantly, it is unnecessary to establish the form, content or ‘precise terms’ of the cartel. The Court found that an irrevocable commitment to any particular course of action was not required for there to be an ‘attempt’, but that in this case Delta’s offer of a payment to a competitor ’unequivocally crossed the Rubicon and burnt his boats’. However, preparation and conduct that is subtle, tentative or remote is not enough. For example, telling a colleague about a proposed meeting with a competitor with the intention of offering payment to increase the chances of winning a tender may not be enough to meet the conduct limb.
- Intention: An intention or purpose to ‘bring about the proscribed result’ of reaching a contract, arrangement of understanding is enough to meet the intention limb. No expectation or belief of success is necessary.
Key takeaways for construction businesses include:
- The bar for proving an ‘attempt’ to form a cartel is low. Courts are willing to infer an attempt even if the ‘details and precise mechanism’ are not spelled out, particularly where a proposal to rig a tender would have been ‘obvious’ given the parties’ commercial and tendering experience even absent greater specificity.
- Discussions between competitors about rigging bids or other types of cartel conduct (such as fixing prices or allocating markets) are capable of amounting to an ‘attempt’ and falling foul of the law, even if the attempt fails.
- Ensure there are protocols or rules which apply to any discussions with competitors, including in casual coffee meetings.
The competitor in this case, LES, was not prosecuted for being part of the cartel as they refused to participate. This decision is a reminder that businesses should object to approaches by a competitor that may interfere with the competitive process and ensure this is included in the meeting minutes, if available. Businesses should also consider taking advantage of the ACCC’s updated immunity and cooperation policy if you receive an approach by a competitor that may amount to cartel conduct – we discuss the updated policy further below.
ACCC initiates market sharing cartel proceedings against four crane hire companies
On 3 September 2025, the ACCC commenced proceedings against four mobile crane hire companies and their senior executives for:
- arranging to limit supply by not servicing certain building sites or customers, such as customers who have unpaid debts or sites operated by the Construction Forestry and Maritime Employees Union (CFMEU) during ongoing negotiations on Enterprise Bargaining Agreements.
- attempting to fix prices of cross hire rates, which is the fee a mobile crane company pays for renting cranes from a competitor crane company.
The conduct allegedly occurred on WhatsApp groups between competitors. The Chair of the ACCC noted the importance of mobile cranes to ‘a range of critical sectors of the Australian economy’, including construction and infrastructure, in taking action against the companies.
The ACCC is seeking a number of remedies, including penalties and disqualification orders for the senior executives involved.
This is not the first time that cranes have been in the ACCC’s spotlight. We examine the penalties for a market sharing cartel case also involving crane companies NQCranes and MHE-Demag Australia Pty Ltd from 2022 in our blog post here.
These proceedings were commenced in the same week as cartel proceedings against four fresh produce suppliers and their senior executives, who allegedly fixed prices of weekly quotes that were provided to Aldi. They also follow proceedings commenced late last year against Spotless and Ventia and their senior executives for allegedly fixing prices of estate maintenance and operation services for the Department of Defence (Defence). Spotless and Ventia are alleged to have coordinated their requests to Defence for additional mark-ups and fees under certain contracts and energy saving initiatives. This pipeline of cartel proceedings demonstrates the ACCC’s current appetite for flexing its enforcement powers in the cartel space.
Other recent cartel enforcement in construction and infrastructure
The ACCC has taken multiple enforcement actions against cartel conduct in the construction and infrastructure industry in recent years. Examples include:
- On 28 May 2025, mining-services and equipment company Qteq Pty Ltd was found to have attempted to rig bids with three other competitors by allocating customers and agreeing to not compete on certain tenders. We analysed this decision in our blog post here.
- On 2 April 2025, the majority of the High Court dismissed an appeal by the ACCC from the Full Federal Court’s decision in the ACCC’s proceedings against construction company J Hutchinson Pty Ltd and the CFMEU. The High Court decision confirms that a degree of ‘reciprocity’ or ‘meeting of the minds’ is required for two parties to arrive at an understanding for the purposes of sections 45E and 45EA of the Competition and Consumer Act 2010 (Cth). For more, see our blog post here.
- In 2023, ARM Architecture was fined $900,000 and its managing director fined $75,000 for attempting to rig bids for a tender in relation to a building project at a university. We examine the details in our Insight post here.
- In 2022, two Sydney suppliers of slate roofing services were fined penalties totalling $420,000 after each agreed to rig bids for tenders at a university and a residential project in exchange for a cash payment from each other.
In New Zealand, two construction companies have pleaded guilty to criminal cartel conduct. In the first case, which was New Zealand’s first criminal cartel prosecution, the Judge accepted that, were it not for a number of mitigating factors, a sentence of 2 years in prison would have been appropriate for one of the individuals. Although avoiding jail, that individual was sentenced to 6 months’ community detention, and 200 hours’ community work.
In Singapore in May 2025, the Competition & Consumer Commission imposed fines on 2 construction companies for bid rigging. This followed raids on the companies in 2023.
The coincident attention of regulators in the region on construction cartels highlights the regulatory focus on the issue.
ACCC immunity and cooperation policy for cartel conduct
The ACCC updated its Immunity and cooperation policy for cartel conduct (Policy) at the end of 2024. Reports about cartel conduct typically rely on tip-offs from immunity seekers. The Policy is designed to incentivise cartel participants to come forward and provide assistance to the ACCC on the condition that they will be granted immunity from cartel civil proceedings or criminal prosecutions under the Competition and Consumer Act 2010 (Cth) (CCA).
The ACCC may grant civil immunity, or make a recommendation to the CDPP to grant criminal immunity, if it is satisfied that the immunity applicant has met the conditions for immunity set out in the Policy, including in relation to admissions, disclosure and cooperation.
The updated Policy clarifies:
- Individual applicants (including current and former employees, directors and officers) are no longer required to make admissions regarding their involvement in the relevant cartel conduct as a pre-condition to receiving conditional immunity. Instead, they are now required to provide ‘full, frank and truthful disclosure regarding his or her knowledge of, and involvement in, the conduct’ as a pre-condition to receiving conditional immunity. Corporations are still required to make admissions of their involvement in cartel conduct to satisfy the criteria for conditional immunity. The purpose of this change is to increase individuals’ incentive to provide candid and helpful evidence to the ACCC, including potentially against a current or former employer.
- Immunity is available to corporations or individuals who have attempted to engage in cartel conduct, provided they can provide material assistance in proceedings against another party and did not unilaterally cause others to engage in cartel conduct. This is likely to broaden the scope of attempts that may be eligible for immunity, but with the caveat that the ACCC may not grant immunity if it considers that the party engaged in a unilateral attempt to induce others to join a cartel.
- Corporations that seek immunity must take steps to reduce the risk of future non-compliance with the CCA, such as creating or updating an existing CCA compliance program to the ACCC’s satisfaction.
- Corporate applicants can no longer have their lawyers present at ACCC interviews with derivative immunity applicants. Derivative immunity applicants are related corporate entities or individuals of a corporation involved in cartel conduct that is applying for immunity. This means that corporate immunity applicants will have considerably less oversight about the totality of evidence available to the ACCC in relation to the relevant cartel conduct and the corporate group’s other activities/dealings.
The updated Policy is timely in light of the ACCC’s recent crackdown on attempts to form a cartel involving the construction and infrastructure industry. It is likely to support increased cartel enforcement by the ACCC going forward. Businesses should ensure that they have robust training and policies to prevent cartel conduct, including attempted cartel conduct, in their discussions with competitors.
