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

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, NETTLE AND GORDON JJ

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER APPELLANT

AND

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ANOR RESPONDENTS

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 14 February 2018 M65/2017

ORDER

1. Leave is granted for the appellant to amend the notice of appeal in the manner set out in the proposed amended notice of appeal exhibited to the affidavit of Brendan Charles dated 10 November 2017.

2. The appellant pay the first and second respondents' costs of, and incidental to, the application to amend the notice of appeal.

3. Appeal allowed.

4. Set aside order 2 of the orders made by the Full Court of the Federal Court of Australia on 21 December 2016 and, in its place, order that orders 7 to 13 of Mortimer J made on 13 May 2016 be set aside.

5. Remit the matter to the Full Court of the Federal Court of Australia for the re‑imposition of penalties according to law.

On appeal from the Federal Court of Australia

Representation

T M Howe QC with C J Tran for the appellant (instructed by Sparke Helmore)

R M Doyle SC with J D Watson for the respondents (instructed by Slater & Gordon)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

Industrial law – Pecuniary penalties – Where union official contravened civil remedy provision of Fair Work Act 2009 (Cth) – Where union contravened civil remedy provision through union official's conduct – Where s 546 of Fair Work Act provides court can order person to pay pecuniary penalty – Where s 545(1) of Fair Work Act provides court can make any order it considers appropriate if satisfied person contravened, or proposes to contravene, civil remedy provision – Where pecuniary penalties imposed on both union official and union – Whether s 545(1) or s 546 of Fair Work Act or s 23 of Federal Court of Australia Act 1976 (Cth) empowers court to order that union not indemnify union official against pecuniary penalty – Whether s 545(1) or s 546 of Fair Work Act or s 23 of Federal Court of Australia Act empowers court to order that union official not seek or accept indemnity or contribution from union in respect of pecuniary penalty.