Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97

Appropriate penalties for the Union and Mr Myles must reflect the seriousness, deliberateness, and repeated nature of the contraventions of s 348 of the Fair Work Act, with specific and general deterrence as paramount considerations. Section 546 of the Act authorises a personal payment order against Mr Myles to ensure penalties serve as a real deterrent and are not paid or reimbursed by the Union. A moderate personal payment order is warranted to prevent indemnification from Union funds; a wider order affecting third parties is not justified on current evidence.

Jurisdiction
Australia
Judgment Date
25 June 2018
Procedural Posture
Appeal / Re Imposition of Penalties Pursuant to High Court Remitter
Outcome
Orders made re-imposing penalties and indicating form of personal payment order, with parties to file draft orders and submissions as to form; matter stood over for the making of final orders.
Legal Topics
['contraventions of S 348 Fair Work Act' 'coercion in Industrial Activity' 'personal Payment Order' 'imposition of Pecuniary Penalties']
['industrial Law' 'employment Law'] ['contraventions of S 348 Fair Work Act' 'coercion in Industrial Activity' 'personal Payment Order' 'imposition of Pecuniary Penalties']

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Procedural Posture

Appeal / Re Imposition of Penalties Pursuant to High Court Remitter

Legal Issues

  1. 1 ['What is the appropriate pecuniary penalty for admitted contraventions of s 348 of the Fair Work Act 2009 (Cth)?' 'Whether a personal payment order should be made against Mr Myles to prevent indemnification by the Union.' 'Can s 546 of the Fair Work Act 2009 (Cth) support a personal payment order against Mr Myles?']

Ratio Decidendi

Appropriate penalties for the Union and Mr Myles must reflect the seriousness, deliberateness, and repeated nature of the contraventions of s 348 of the Fair Work Act, with specific and general deterrence as paramount considerations. Section 546 of the Act authorises a personal payment order against Mr Myles to ensure penalties serve as a real deterrent and are not paid or reimbursed by the Union. A moderate personal payment order is warranted to prevent indemnification from Union funds; a wider order affecting third parties is not justified on current evidence.

Court Disposition

Orders made re-imposing penalties and indicating form of personal payment order, with parties to file draft orders and submissions as to form; matter stood over for the making of final orders.

Orders

  • ['Pursuant to r 8.21(1)(d) of the Federal Court Rules 2011 (Cth), name of first appellant amended.' 'Respondent to file and serve draft minute of order by 2 July 2018.' 'Appellants to file and serve submissions as to form of orders by 9 July 2018.' 'The matter be stood over to a date to be fixed for making of orders.']