Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4

FEDERAL COURT OF AUSTRALIA

Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 Appeal from: Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338

File number: VID 228 of 2015

Judges: TRACEY, BARKER AND KATZMANN JJ

Date of judgment: 22 January 2016

Catchwords: INDUSTRIAL LAW – penalties – whether penalties should be paid to appellant under s 546(3) of the Fair Work Act 2009 (Cth) – consideration of the "usual order" that person (or entity) who brings successful contravention proceeding is entitled to be paid any pecuniary penalty imposed – policy considerations – primary judge erred in finding that appellant should not receive payment of penalties because it would deliver a "windfall" – "windfall" principle problematic – payment of penalties to appellant would not deliver "windfall" in any case

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) s 49(5) Conciliation and Arbitration Act 1904 (Cth) s 44, s 45, s 59, s 60, s 119, s 120 Crimes Act 1914 (Cth) s 13 Fair Work Act 2009 (Cth) s 351, s 351(1), s 539(2), s 545, s 545(2), s 546(3), s 546(3)(b), s 546(3)(c), s 546(5), s 569, s 569A, s 570, s 570(1), s 570(2), Pt 3-1, Pt 4-1, Div 2, Subdiv A, Subdiv B Federal Court of Australia Act 1976 (Cth) s 37M, s 37M(3), s 37N Industrial Relations Act 1988 (Cth) s 178, s 178(5)(c), s 178(5)(e), s 356 Workplace Relations Act 1996 (Cth) s 178, s 356, s 718(1), s 719, s 841, Pt 14, Div 2 Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Federal Court Rules 2011 (Cth) r 36.03, r 36.21, r 36.21(1), r 36.21(2), r 36.57 Federal Court Rules 1979 (Cth) O 52 r 22