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

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Appeal from: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436

File number: VID 584 of 2016

Judges: ALLSOP CJ, WHITE AND O'CALLAGHAN JJ

Date of judgment: 25 June 2018

Catchwords: INDUSTRIAL LAW – contraventions of s 348 of Fair Work 2009 (Cth) – blockade of work site and threats made by union official – re-sentencing – appropriate pecuniary penalties for contraventions by union and union official INDUSTRIAL LAW – personal payment order under s 546 of Fair Work Act 2009 (Cth) – whether appropriate to make personal payment order – scope of personal payment order that is appropriate in the circumstances

Legislation: Crimes Act 1914 (Cth), s 4AA Fair Work Act 2009 (Cth), ss 348, 539, 545, 546, 557 Federal Court Rules 2011, rr 41.06, 41.07

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 92 ALJR 219 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Commonwealth v McCormack [1984] HCA 57; 155 CLR 273 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184; 247 FCR 339 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 194 IR 461 Cox v Hakes (1890) 15 App Cas 506 Director of Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 998 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53 Heavener v Loomes [1924] HCA 10; 34 CLR 306 Merchant Banking Co v Maud (1874) LR 18 Eq 659 Rodger v The Comptoir d'Escompte de Paris (1871) LR 3 PC 465 Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) ATPR 41-076 Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465