Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184

Section 545(1) of the Fair Work Act 2009 (Cth) does not authorise an order prohibiting another person from indemnifying an individual against liability to pay a statutory penalty; such orders require express statutory authority. The trial judge erred in making Order 13. In relation to procedural fairness, the court found that using financial evidence for a purpose not foreshadowed, without warning parties, constituted a denial of procedural fairness. However, the denial had no substantive impact on penalties imposed. Other discretionary determinations and penalties were upheld.

Parties
Appellant: Construction, Forestry, Mining and Energy Union; Appellant: Joseph Myles; Respondent: Australian Building and Construction Commissioner
Jurisdiction
Australia
Judgment Date
21 December 2016
Procedural Posture
Civil Appeal / Appeal From Orders of a Single Judge on Penalties in a Civil Penalty Proceeding; Decision of Full Court
Outcome
Appeal allowed in part
Legal Topics
Statutory Interpretation, Civil Penalty Proceedings, Procedural Fairness, Penalty Discretion, Deterrence
Employment Law Industrial Law Statutory Interpretation Civil Penalty Proceedings Procedural Fairness Penalty Discretion Deterrence

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Parties

Construction, Forestry, Mining and Energy Union

Appellant

Joseph Myles

Appellant

Australian Building and Construction Commissioner

Respondent

Procedural Posture

Civil Appeal / Appeal From Orders of a Single Judge on Penalties in a Civil Penalty Proceeding; Decision of Full Court

Legal Issues

  1. 1 Whether s 545(1) of the Fair Work Act 2009 (Cth) authorises an order prohibiting indemnity of a penalty (Order 13)
  2. 2 Whether denial of procedural fairness occurred in use of union’s financial report
  3. 3 Whether findings regarding a 'strategy' of litigation conduct by the union lacked procedural fairness

Ratio Decidendi

Section 545(1) of the Fair Work Act 2009 (Cth) does not authorise an order prohibiting another person from indemnifying an individual against liability to pay a statutory penalty; such orders require express statutory authority. The trial judge erred in making Order 13. In relation to procedural fairness, the court found that using financial evidence for a purpose not foreshadowed, without warning parties, constituted a denial of procedural fairness. However, the denial had no substantive impact on penalties imposed. Other discretionary determinations and penalties were upheld.

Court Disposition

Appeal allowed in part

Orders

  • Order 13 made by the Court on 13 May 2016 be set aside.
  • Otherwise, the appeal be dismissed.