Written by Workforce Editor David Marin-Guzman
The Commonwealth has intervened to launch a special High Court challenge against a ruling it says effectively prevents regulators, including the workplace ombudsman and building industry watchdog, from reaching settlements in civil penalty prosecutions.
Federal Attorney-General George Brandis has filed a special leave application with the Fair Work Building and Construction (FWBC), the Australian Securities & Investments Commission (ASIC), the Australian Competition & Consumer Commission (ACCC) and the Australian Tax Office all understood to be parties of interest.
Workforce understands the Construction Forestry Mining Energy Union and the Communications Electrical Plumbing Union have also filed special leave applications to appeal against the ruling, with their position aligning with that of the Abbott government.
Last month the Federal Full Court found the High Court’s 2014 precedent preventing criminal prosecutors from making submissions on the appropriate range or outcome of sentencing also applied to civil penalty cases as courts’ discretion should be “unfettered and entirely independent”.
As a result it found FWBC could not nominate a fixed-penalty or range of civil penalties for alleged breaches of unlawful industrial action (WF 8/05/2015).
Workforce understands the decision, which was immediately binding due to the application of the High Court precedent, set off alarm bells among C’wealth regulators. They’re concerned it threatens their ability to achieve concessions on liability in return for expectations of lower penalties.
In the Full Court hearing, the FWO argued that doing away with such agreements would lead to more contested hearings and heavier costs in time and money.
The decision is understood to particularly affect ASIC and ACCC due to the significant penalties that can be applied in their respective jurisdictions. Questions have been raised how corporates will be motivated to disclose wrongdoing without a degree of certainty on the outcomes.
However, the decision may be desirable to the FWBC. While FWBC supports the right to make submissions on penalties, director Nigel Hadgkiss has previously criticised his predecessors’ settlements with unions (WF 6/06/14) and has taken a tougher stance on penalties.
A special leave hearing date has yet to be fixed.
(This story first ran in Workforce 19655, 12 June, 2015)
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