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

The Australian Building and Construction Commissioner (ABCC) brought proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) in the Federal Court of Australia. The dispute concerned the ABCC's application for a non-indemnification order against the CFMMEU, seeking to prevent the union from indemnifying its officials against penalties imposed for contraventions of the *Fair Work Act 2009* (Cth).

The primary legal issue before the Court was whether the ABCC was entitled to seek a non-indemnification order under section 546 of the *Fair Work Act 2009* (Cth) in circumstances where the union had already paid the penalties imposed on its officials. A secondary issue arose regarding whether an amendment to the ABCC's statement of claim was necessary to pursue this relief, given the change in the relief sought during the proceedings.

Judge Cameron considered the text and purpose of section 546, which permits the Court to make a non-indemnification order if it is satisfied that a person has contravened the Act and that the person has been indemnified or is to be indemnified by another person. The Court found that the section's language did not preclude an order being made after the penalty had been paid, nor did it require the ABCC to amend its statement of claim to specifically plead the payment of the penalty. The Court reasoned that the power to make such an order was preventative and aimed at deterring future indemnification, and that the statutory language did not impose a temporal limitation on its exercise.

The Court made orders that the CFMMEU was not entitled to indemnify its officials against the penalties that had been imposed.