INDUSTRIAL LAW – penalties – whether penalties should be paid to appellant under s 546(3) of the Fair Work Act 2009 (Cth) – consideration of the “usual order” that person (or entity) who brings successful contravention proceeding is entitled to be paid any pecuniary penalty imposed – policy considerations – primary judge erred in finding that appellant should not receive payment of penalties because it would deliver a “windfall” – “windfall” principle problematic – payment of penalties to appellant would not deliver “windfall” in any case
Fair Work Act 2009 (Cth) s 351, s 351(1), s 539(2), s 545, s 545(2), s 546(3), s 546(3)(b), s 546(3)(c), s 546(5), s 569, s 569A, s 570, s 570(1), s 570(2), Pt 3-1, Pt 4-1, Div 2, Subdiv A, Subdiv B
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Sayed v Construction, Forestry, Mining and Energy Union
Sign in free to access the full text
Details
AGLC
Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4
Case
[2016] FCAFC 4
Decision Date
CaseChat Overview and Summary
In the matter of Sayed v Construction, Forestry, Mining and Energy Union, the appellant, Mr. Sayed, challenged the primary judge’s order that pecuniary penalties imposed on the respondent, the CFMEU, be paid to the Commonwealth rather than to Mr. Sayed. Mr. Sayed argued that he, as the person who brought the successful contravention proceedings, should be entitled to the penalties imposed. The legal issues before the court were whether the primary judge correctly ordered the penalties to be paid to the Commonwealth and whether the “windfall” principle was appropriately applied in this context.
The court found that the primary judge erred in her determination. The usual order is that the person who successfully brings contravention proceedings is entitled to be paid any pecuniary penalty imposed. However, the primary judge concluded that Mr. Sayed should not receive the penalties because it would result in a “windfall.” The court held that the “windfall” principle was problematic and should not be applied in this manner. Paying the penalties to Mr. Sayed would not deliver a “windfall” in any event. Therefore, the court allowed the appeal and ordered that the penalties be payable to Mr. Sayed forthwith.
The court also dismissed other applications and appeals, including Mr. Sayed’s application to amend his notice of appeal and his application to tender further documentary evidence. Additionally, the respondent’s application for an extension of time to appeal was refused. The court declared that the respondent’s purported cross-appeal did not satisfy the requirements of Rule 36.21(1) of the Federal Court Rules 2011 (Cth). The final orders of the court were that the penalties imposed on the respondent be payable to Mr. Sayed forthwith.
Orders
Orders of the court
1. The appellant’s application for leave to amend his notice of appeal be refused.
2. The appellant’s application for leave to tender further documentary evidence on the appeal be refused.
3. The respondent’s application for an extension of time to appeal be refused.
4. The appeal be allowed.
5. In place of order 4 made 13 April 2015, there be an order that “the penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the applicant forthwith”.
THE COURT DECLARES THAT:
6. The respondent’s purported cross-appeal does not satisfy the requirements of Rule 36.21(1) of the Federal Court Rules 2011 (Cth) in that it is not an appeal from “part of a judgment or an order” of the primary judge.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The application was, therefore, refused.Should Mr Sayed be given leave to file further documentary evidence in support of his appeal? Mr Sayed applied for leave to tender and rely on eight documents which (with one exception) he said had been in the Court book at trial but had not been tendered. The exception was the bill of costs received from his solicitor on which he, initially, said that he proposed to rely to advance submissions relating to the quantum of compensation and his claim to be paid the pecuniary damages awarded against the CFMEU. Mr Sayed produced a list which identified each of the eight documents. On examination it emerged that five of the documents had, in fact, been tendered at trial. A sixth document was said to be an e-mail and an attachment. The covering e-mail had not been tendered but the attachment had. That left two documents. The first was a bundle of job applications which had been in the Court book but had not been tendered. The final document was the solicitor’s bill of costs. Under questioning Mr Sayed abandoned any reliance on the bill of costs because he ultimately accepted that any costs burden which fell on him had no bearing on the amount of compensation to which he was entitled. Nor did it support his claim that the pecuniary damages should be paid to him. Rule 36.57 requires that any application to the Court to receive further evidence on appeal must be filed at least 21 days before the hearing and be accompanied by an affidavit containing certain prescribed information. No such application was made to the Court. Mr Sayed was represented by senior and junior counsel at trial. He was unable to explain why they chose not to tender particular documents, if, in fact, any such failure had occurred. Any application by Mr Sayed to tender further documents should have been made in accordance with the Rules and in the course of the appeal management process. In the absence of any explanation for the late application and any attempt to relate particular documents to issues arising on the appeal, the application was refused. THE APPEALDid the primary judge err in ordering that the pecuniary penalties be paid to the Commonwealth, and not to Mr Sayed? As explained above, on 13 April 2015, following consideration of the written submissions of the parties on penalties, and (by consent of the parties) without the need for an oral hearing, her Honour made the following orders as to penalties:1.In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by redeploying the applicant, the respondent pay a penalty of $20,000.2.In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by suspending the applicant, the respondent pay a penalty of $10,000.3.In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by dismissing the applicant, the respondent pay a penalty of $15,000.4.The penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the Commonwealth, on or before 18 May 2015.
Decision
Reasons for decision
For these reasons we would allow the appeal and vary order 4 made on 13 April 2015 so that:The penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the applicant forthwith.Conclusion and order The following orders and declaration should be made:(1)The appellant’s application for leave to amend his notice of appeal be refused.(2)The appellant’s application for leave to tender further documentary evidence on the appeal be refused.(3)The respondent’s application for an extension of time to appeal be refused.(4)The appeal be allowed.(5)In place of order 4 made 13 April 2015, there be an order that “the penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the applicant forthwith”.The Court declares that:(6)The respondent’s purported cross-appeal does not satisfy the requirements of Rule 36.21(1) of the Federal Court Rules 2011 (Cth) in that it is not an appeal from “part of a judgment or an order” of the primary judge.