FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117

ORDERS

PENAL NOTICE

TO:    THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION AND JOSEPH MYLES

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

In these orders:

(i)     “Declarations” means the declarations made by Justice Mortimer on 13 May 2016 in VID 282 of 2014.

THE COURT ORDERS THAT:

1.    The first appellant pay to the Commonwealth of Australia a penalty of $46,000 in respect of its contravention of section 348 of the Fair Work Act 2009 (Cth) as declared in paragraph 1 of the Declarations.

2.    The first appellant pay to the Commonwealth of Australia a penalty of $25,000 in respect of its contravention of section 348 of the Fair Work Act 2009 (Cth) as declared in paragraph 2 of the Declarations.

3.    The first appellant pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 348 of the Fair Work Act 2009 (Cth) as declared in paragraph 3 of the Declarations.

4.    The second appellant pay to the Commonwealth of Australia a penalty of $8,500 in respect of his contravention of section 348 of the Fair Work Act 2009 (Cth) as declared in paragraph 4 of the Declarations.

5.    The second appellant pay to the Commonwealth of Australia a penalty of $4,000 in respect of his contravention of section 348 of the Fair Work Act 2009 (Cth) as declared in paragraph 5 of the Declarations.

6.    The second appellant pay to the Commonwealth of Australia a penalty of $7,000 in respect of his contravention of section 348 of the Fair Work Act 2009 (Cth) as declared in paragraph 6 of the Declarations.

7.    The penalties in paragraphs 1-3 above are to be paid to the Commonwealth of Australia within 28 days.

8.    The penalties in paragraphs 4-6 above are to be paid to the Commonwealth of Australia within 90 days.

9.    The second appellant pay the penalties in paragraphs 4-6 above (Penalties) personally in that he not, whether before or after the payment of the Penalties:

(a)    seek to have or encourage the first appellant in any way whatsoever, directly or indirectly, to pay to him or for his financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the Penalties, whether in whole or in part; and

(b)    accept or receive from the first appellant in any way whatsoever, any money or financial benefit referable to the payment of the Penalties, whether in whole or in part.

10.    There be no order as to costs.

THE COURT DIRECTS THAT:

11.    The respondent serve these orders on:

(a)    the first appellant in accordance with r 10.04 of the Federal Court Rules 2011 (Cth); and

(b)    the second appellant in accordance with r 10.01 of the Federal Court Rules 2011 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    In a judgment delivered on 25 June 2018 (Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97), the Court indicated the penalties that it would impose on the Union and Mr Myles, and also set out at [44] the outline of the terms of a personal payment order to be made against Mr Myles, as follows:

We would not be prepared, at the present time and on the current state of the evidence, to go beyond an order that Mr Myles pay the penalties personally in that (1) he must not, whether before or after the payment of the penalties, seek or encourage the Union in any way whatsoever, directly or indirectly, to pay to him or for his benefit in any way whatsoever any money or benefit referable to payments of the penalties whether in whole or in part and (2) he must not accept or receive from the Union in any way whatsoever any money or benefit referrable to payment of the penalties whether in whole or in part.

2    The Court invited submissions from the parties as to the form of the personal payment order. Two points of contention arise from what the parties have filed, though only one directly concerns the personal payment order.

3    The respondent has adopted the terms of [44] in its proposed orders. The appellants object to the words “or benefit” in (2). The objection is put on the following basis in paragraphs [4] and [5] of the submissions:

4.    The Appellants submit that the words “or benefit” in (2) should be removed from the order. As the Chief Justice observed at the hearing on 25 May 2018, the purpose of the personal payment order sought is to prevent any form of indemnity by the Union from the Union’s own funds (T18.25-26). That purpose is achieved by the personal payment order modified in the manner that the Appellants propose.

5.    By contrast, once the word “benefit” is inserted into the second paragraph of the personal payment order, the scope of that order is dramatically increased, and the certainty of that order is dramatically reduced. The word “benefit” has a large and indeterminate meaning. In the second paragraph it is not constrained, as it is in the first paragraph of the order, by the verb “to pay”. If the Second Respondent cannot “accept or receive from the Union in any way whatsoever any … benefit referable to payment of the penalties” does that mean that the Union cannot, for example, inform its members of a fundraiser for the Second Respondent? Does it mean that a fund raising event cannot be held on the Union’s premises? The personal payment order becomes one that may be capable of regulating the more general conduct of the Union as opposed to regulating the expenditure of Union funds and the scope of that order is very difficult to ascertain. That is not the order that the Reasons suggest was intended and it is an order that is far more uncertain and contestable than the order proposed by the Appellants.

4    The phrase “or benefit” was designed to capture the receipt or acceptance of moneys worth or value from Union funds, and to ensure that the order was not limited by a definition of “money”. The order should be wide enough to encompass financial or valuable benefit obtained from the use of Union funds. This would prevent Mr Myles receiving or accepting some benefit from the Union (such as a car or some other chattel) which was not money, but referable to the expenditure of Union funds and a valuable financial benefit. This would avoid any narrowness of effect by limiting the order to money, but also avoid any overly wide meaning preventing the Union from undertaking actions of no financial cost to itself but which might help Mr Myles. The example of the hosting of a fundraising event on union premises would not be caught as long as there was no real contribution of Union funds to Mr Myles, as there might be for instance if Union funds were used to underwrite or contribute to the means of raising funds. Understood this way we do not consider that the order suffers from any vice. We would, however, add the word “financial” before the word “benefit”.

5    We will also omit the word “must” from the text of the personal payment order proposed. The word “must” is unnecessary in the text of the order itself, given that the Court’s order is expressed in the imperative.

6    The second matter of contention concerns the time for Mr Myles to pay the penalties. We did not set a time in our reasons. The respondent provided for Mr Myles to pay within 60 days (and the Union within 28 days). The appellants seek 12 months or 10 equal monthly instalments with the first to be made in 60 days. No evidence of Mr Myles’ income or assets was filed. It was made clear before the hearing that none would be filed. In these circumstances we do not see why the 60 days proposed by the respondent is not appropriate. Nonetheless we are prepared to make it 90 days.

7    With the amendments referred to in [4]-[6] above, the orders will be as proposed by the respondent.

Associate:

Dated:    2 August 2018