Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117

The Court held that the personal payment order should include the concept of benefit, but confined by adding the word "financial", so as to capture money's worth or valuable benefit from Union funds without making the order overly broad. It also omitted the unnecessary word "must" and fixed 90 days, rather than the 12 months or instalment regime sought by the appellants, for Mr Myles to pay his penalties because no evidence of his income or assets had been filed.

Jurisdiction
Australia
Judgment Date
02 August 2018
Procedural Posture
Appeal Concerning Penalties for Contraventions of S 348 of the Fair Work Act 2009 (cth) / Determined on the Papers as to the Form of Orders, Including a Personal Payment Order
Outcome
Orders made imposing penalties, making a personal payment order against the second appellant, and making no order as to costs.
Legal Topics
['contraventions of S 348 of the Fair Work Act 2009 (cth)' 'civil Penalties' 'personal Payment Order' 'non Indemnification']
['industrial Law' 'employment & Industrial Relations'] ['contraventions of S 348 of the Fair Work Act 2009 (cth)' 'civil Penalties' 'personal Payment Order' 'non Indemnification']

Case Brief

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Procedural Posture

Appeal Concerning Penalties for Contraventions of S 348 of the Fair Work Act 2009 (cth) / Determined on the Papers as to the Form of Orders, Including a Personal Payment Order

Legal Issues

  1. 1 ['Whether the personal payment order against Mr Myles should include the words "or benefit" and, if so, in what form.' 'What time should be allowed for Mr Myles to pay the penalties.']

Ratio Decidendi

The Court held that the personal payment order should include the concept of benefit, but confined by adding the word "financial", so as to capture money's worth or valuable benefit from Union funds without making the order overly broad. It also omitted the unnecessary word "must" and fixed 90 days, rather than the 12 months or instalment regime sought by the appellants, for Mr Myles to pay his penalties because no evidence of his income or assets had been filed.

Court Disposition

Orders made imposing penalties, making a personal payment order against the second appellant, and making no order as to costs.

Orders

  • ['The first appellant pay to the Commonwealth of Australia a penalty of $46,000 in respect of its contravention of section 348 of the Fair Work Act 2009 (Cth) as declared in paragraph 1 of the Declarations.' 'The first appellant pay to the Commonwealth of Australia a penalty of $25,000 in respect of its...