The High Court has dismissed two appeals against decisions of the South Australian Supreme Court (Maxcon) and the New South Wales Court of Appeal (Probuild) on when a court can review an adjudication decision about security of payments legislation. In both of these matters, the primary courts held that an adjudicator had made an error of law in adjudicating disputes over progress payments for construction projects. The NSWCA held that the security of payment legislation removed any judicial power to quash an arbitral decision for that error of law, and the SASCFC held that it was bound to follow the NSWCA ruling. These rulings were upheld by the High Court.
The High Court has remitted a proceeding concerning a civil breach of federal industrial relations law to the Full Court of the Federal Court of Australia to consider whether to order an individual defendant to pay the penalty personally. The defendants, a building industry union and an employee of that union, admitted to breaching s346 of the Fair Work Act 2009, which prohibits coercing someone into taking industrial activity, by organising a blockade of cement supplies to a government building site in order to put pressure on the builders to hire a representative of the union. In proceedings brought by the predecessor to the Australian Building and Construction Commission, the Federal Court imposed a civil penalty of $60,000 for the union and $18,000 for the employee. The amount of penalty was not disputed before the High Court.
The issue that went to the High Court was the ‘non-indemnification’ order that accompanied the civil penalty on the employee. Continue reading