The High Court of Australia today confirmed the Federal Court can order a union official to personally pay a penalty and not seek reimbursement or indemnity from the union.

In 2016, the Federal Court imposed penalties against the CFMEU and its official Joseph Myles for his unlawful blockade of the taxpayer-funded $4.3 billion Regional Rail Link project site, which prevented the delivery of concrete to the site and caused tonnes of wastage.

The primary judge found in 2016 that there was "a conscious and deliberate strategy by the CFMEU and its officers to engage in disruptive, threatening and abusive behaviour towards employers without regard to the lawfulness of that action, and impervious to the prospect of prosecution and penalties".

For his breaches of the Fair Work Act, Mr Myles was ordered to personally pay a penalty.

The CFMEU appealed the ruling that Mr Myles’ penalty could not be paid by the CFMEU and the Full Federal Court upheld the CFMEU’s appeal. The ABCC then appealed to the High Court of Australia.

In handing down its judgment today in favour of the ABCC, the High Court found:

"…the principal object of an order that a person pay a pecuniary penalty…is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners"

"An order that a contravener must not seek or receive indemnity from his or her co-contravener…assists in accomplishing the calculated level of sting or burden of the pecuniary penalty…".

The proceeding will now return to the Full Federal Court for a re-determination of penalties against Mr Myles, including whether he should be ordered to pay any penalty personally.

ABC Commissioner Stephen McBurney said: "This is an important decision of the High Court that confirms a personal payment order can be made against an individual. Such orders are designed to ensure that the person responsible for unlawful conduct cannot avoid paying the appropriate penalty.

"The ABCC is committed to ensuring all industry participants, be they employers, employees or unions, comply with Australian workplace laws. Penalties cannot simply be treated as a cost of doing business."

Media Release
14 February 2018

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James Martin

Senior Adviser - Media James.Martin@abcc.gov.au 0436 375 478
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Edda Mwangi

Adviser - Media Edda.Mwangi@abcc.gov.au (03) 8509 3087 0438 321 171