Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Section 545(1) of the Fair Work Act 2009 (Cth) does not empower courts to make penal orders such as a non-indemnification order; such power is confined to preventative, remedial, and compensatory orders. However, s 546(1) carries with it an implied power to make an order that a contravener pay a pecuniary penalty personally (a personal payment order) and not seek or accept indemnification from another person, when necessary to achieve the deterrent effect of the penalty. Section 546(1) does not, however, justify orders against persons other than the contravener (such as prohibiting a union from indemnifying an official). The matter is remitted for re-imposition of penalties according to law.

Parties
Appellant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Joseph Myles
Jurisdiction
Australia
Judgment Date
14 February 2018
Procedural Posture
Appeal / High Court Judgment on Appeal From Full Court of the Federal Court of Australia
Outcome
Appeal allowed in part
Legal Topics
Fair Work Act Penalties, Non Indemnification Order, Personal Payment Order, Pecuniary Penalties for Civil Remedy Provisions, Enforcement of Penalties
Industrial Law Employment Law Fair Work Act Penalties Non Indemnification Order Personal Payment Order Pecuniary Penalties for Civil Remedy Provisions Enforcement of Penalties

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Parties

Australian Building and Construction Commissioner

Appellant

Construction, Forestry, Mining and Energy Union

First Respondent

Joseph Myles

Second Respondent

Procedural Posture

Appeal / High Court Judgment on Appeal From Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Whether s 545(1) of the Fair Work Act 2009 (Cth) empowers a court to order a union not to indemnify a union official against a pecuniary penalty
  2. 2 Whether s 546(1) of the Fair Work Act 2009 (Cth) or s 23 of Federal Court of Australia Act 1976 (Cth) empowers a court to make such an order or a personal payment order
  3. 3 Nature and limits of implied statutory powers to make ancillary orders enhancing deterrence of penalties

Ratio Decidendi

Section 545(1) of the Fair Work Act 2009 (Cth) does not empower courts to make penal orders such as a non-indemnification order; such power is confined to preventative, remedial, and compensatory orders. However, s 546(1) carries with it an implied power to make an order that a contravener pay a pecuniary penalty personally (a personal payment order) and not seek or accept indemnification from another person, when necessary to achieve the deterrent effect of the penalty. Section 546(1) does not, however, justify orders against persons other than the contravener (such as prohibiting a union from indemnifying an official). The matter is remitted for re-imposition of penalties according to law.

Court Disposition

Appeal allowed in part

Orders

  • Leave granted for appellant to amend notice of appeal as per affidavit of Brendan Charles dated 10 November 2017.
  • Appellant (ABCC) to pay respondents' costs of and incidental to the application to amend the notice of appeal.