14 February 2018

Union officials will held more accountable for their behaviour on building sites following a decision by the High Court that they can be penalised for their individual conduct.

“The High Court’s ruling signals that union officials are not above the law. It means that unions will not be able to indemnify their officials by paying court fines on their behalf. Officials will now face the consequences if they break the law, just like everyone else in the community,” Denita Wawn, CEO of Master Builders Australia said.

The High Court ruled on an ABCC challenge to a full Federal Court decision setting aside Justice Mortimer's banon the CFMEU paying Victorian branch organiser Joe Myles' $18,000 penalty for unlawful conduct in 2013.

In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 (14 February 2018), the High Court found that Courts may impose personal fines against Union Officials for their misconduct and breaches of the Fair Work Act, on top of fines to Unions. The decision affirms the Courts can force union officials to pay fines personally – rather than have the union pay them on their behalf.

In their reasoning, the High Court found that the Federal Court was not able to impose an order for ‘non-indemnification’ against penalties. However, they ordered that a proper construction of the penalty provisions of the Fair Work Act did allow the Courts to make a personal payment order against Union Officials.

The matter has now been referred back to the Federal Court for re-consideration of penalties in line with the new interpretation.

"We can only hope that this decision will mean that union officials will think twice before breaking the law,” Denita Wawn said.

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