Just months later, the ACCC settled on yet another record-breaking fine, this time against Woolworths. The $9 million fine is the highest penalty ever obtained by the ACCC against a party not directly involved, but rather merely ‘knowingly concerned’ in anticompetitive conduct.
In considering the appropriate penalty, the court may have regard to the nature, extent, circumstances, and any loss or damage caused by, the act or omission, and whether the party has previously been found to have engaged in any similar conduct. Further factors, like the size and financial position of the company, whether the contravention was deliberate, systematic, or carried out by senior management, and whether the contravening company had in place programmes for compliance may also be considered.
It is well established that the primary purpose of imposing penalties is deterrence of future similar conduct. Therefore, penalties should be commensurate with genuine punishment, relative to the characteristics of the contravening company. The Act allows the imposition of penalties equivalent to 3 times the amount of benefit the company receives from its involvement in a contravention. Accordingly, in this case, a maximum penalty of $26 million could have been imposed for the two contraventions. According to Justice Jagot, the final penalty of $9 million reflected the seriousness of Woolworths’ conduct. Her Honour also took into account the fact that this was a one off contravention, Woolworths’ involvement was limited, the conduct was engaged in by an employee who was not a member of senior management and Woolworths had cooperated with the ACCC during the investigation, admission and settlement stages of the proceedings.
The outcome therefore highlights that even those playing a relatively small role in cartel and price-fixing schemes may be found to be knowingly concerned. The penalty against Woolworths sends a strong message to individuals and corporations that the ACCC will not hold back on prosecuting, and the courts will not hesitate punishing, even those that are minimally involved in anticompetitive conduct.