remedies
407 This Court may make any order the Court considers appropriate where it is satisfied that a person has contravened a civil remedy provision: s 545(1) FW Act.
408 Without limiting its powers under s 545(1), by s 545(2), the orders the Court may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
409 The Court may also order a person to pay a pecuniary penalty that the Court considers appropriate if the Court is satisfied that a person has contravened a civil remedy provision: s 546(1).
410 Sections 340 and 346 of the FW Act, which I have found the respondent has contravened, are civil remedy provisions: s 539, item 11, FW Act.
411 If this were an ordinary case, the findings of contravention I have made would justify an order granting an injunction requiring IASA to remedy the effects of the contraventions and an order for reinstatement of Mr Puspitono. However, the Union recognises that this is not an ordinary case because Mr Puspitono no longer possesses a valid visa to work in Australia - albeit that this circumstance appears to be a direct result of the adverse actions of IASA.
412 In these circumstances, the Union submits that IASA should pay compensation to Mr Puspitono. The Union says the quantum of compensation must be measured against what, in ordinary circumstances, would have been Mr Puspitono's right to continued employment for the indefinite future, subject to usual contingencies.
413 The Court accepts the Union's submission that the ordinary remedy of reinstatement is, in the circumstances of this case, impractical. There is no certainty that an appropriate visa would be issued to Mr Puspitono to facilitate recommencement of employment with IASA if it were to be ordered. Accordingly a compensatory order is appropriate.
414 So far as the compensation claim is concerned, the Union submits that compensation should be assessed by reference to the following heads of loss:
(1) Economic loss for having to return to Indonesia following the contraventions.
Actual expenses:
(a) Shipping his personal effects back to Indonesia - $585
(b) Cost of air fare to return to Indonesia - $254
Total $839
(2) Loss of wages and remuneration as a result of the termination.
The equivalent of 18 months wages, totalling $82,553.58, plus interest, on the basis of past and future economic loss, calculated as follows:
(a) At the time of termination in October 2009, Mr Puspitono was paid $4,586.31 per month, which equates to an annual amount of $55,035.72.
(b) Mr Puspitono was terminated on 16 October 2009 on four weeks notice, he was paid termination entitlements on or about 30 November 2010.
(c) At the time of the trial, Mr Puspitono had been dismissed for approximately 15 months, he had continued to look for work but has been unable to find alternate, full time, employment.
(d) Mr Puspitono suffered loss and damage for a period of 15 months and continuing and had a reasonable expectation of ongoing work.
(e) Mr Puspitono has attempted to mitigate his losses and economic damages but remains out of full time work.
(f) As a consequence, he should be eligible to be compensated with the equivalent of 18 months wages plus interest on the basis of past and future economic loss.
(3) Non economic loss
(a) Mr Puspitono has suffered non economic loss with regard to pain and suffering.
(b) He had to leave Australia where he was hoping that he would be able to build a financial future for his family.
(c) The humiliation associated with returning to Indonesia in the circumstances of his dismissal imposed loss on him.
(d) Mr Puspitono, as a result of the hurt, humiliation, and stress associated with the contravention, including the unique nature of his forced departure from Australia, should entitle him to a non economic loss order of $25,000 plus interest.
415 The respondent emphasises that in making any order for compensation under s 545(1), the Court must make an order that is "appropriate".
416 The respondent submits there has to be a causal connection between the unlawful dismissal and the loss, which is always a question of fact: see Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 525.
417 In the result, the respondent says the applicant must demonstrate that there was an opportunity for Mr Puspitono to work for a set period of time, and that he had a 100% chance of realising that opportunity but for the unlawful action: see Guthrie v News Limited [2010] VSC 196, [58]-[61], [167]-[168], Kaye J. The respondent says there is no evidence to support such a finding. To the contrary, the evidence supports a finding that, without his Garuda authorisation, Mr Puspitono would have become surplus to requirements very quickly and would have been terminated in his employment for that reason.
418 IASA also submit that Mr Puspitono's evidence of a reduced income after his dismissal "is a consequence of not having an income; it is not a direct consequence of being dismissed from IASA". The respondent says that Mr Puspitono's "bad reputation in the community" was, on his own admission, because people learned of his walk away on 7 April 2008, and that this is more probably the reason why he has found it difficult to get another job, and his reduced income as a result, than the fact of the dismissal from IASA.
419 I note that, while Mr Puspitono gave some evidence concerning other financial relationships, the Union does not submit that compensation should be assessed by reference to such financial arrangements or dealings that Mr Puspitono has or had with his brotherinlaw in respect of his home loan, or reduction in living standards following his return to Indonesia, or on account of food and education expenses for his children.
420 The respondent further says there is no medical evidence to support any finding for compensation on the basis that the dismissal caused any alleged stress, or humiliation or hurt: in this regard, see Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62.
421 I have already noted that the Court has a wide power to make "any order" under s 545(1) the court considers appropriate where it is satisfied that a person has contravened a civil remedy provision. The terms of s 545(2) do not limit the ambit of this power to grant an appropriate order.
422 As I have also set out above, in the unusual circumstances of this case, the only remedy sought by the applicant union is an order awarding compensation for loss that Mr Puspitono has suffered because of the proved contraventions. I consider that compensation should be ordered in the circumstances of this case, there being no other substantive remedy that is appropriate in this case.
423 In accordance with usual principle, an order awarding compensation must be assessed on the basis that an applicant establishes loss that a person has suffered because of the contravention and that this requires an appropriate causal connection between the contravention and the loss claimed.
424 The contraventions in this case relevantly relate to the dismissal of Mr Puspitono from his employment, effective (generally speaking) from the end of November 2009, when he was paid out his contractual entitlements and benefits, as acknowledged by the Union.
425 The contraventions relating to the making of a negative assessment and the provision of that negative assessment to Garuda Indonesia, may be considered to be the cause of loss additional to that caused by the dismissal itself, and the subject of a separate compensation order where a distinct and separate loss is disclosed.
426 As to the economic loss items claimed by the Union, I find those are a direct consequence of the contraventions. Mr Puspitono lost his job, his visa and was obliged to return to Indonesia to find work. I find the claims totalling $839 are proved and compensation in that order should be ordered.
427 So far as the loss of wages and remuneration as a result of the termination is concerned, I find loss under this head is also a direct consequence of the contraventions. I note again, as I did above, that in Mr Puspitono's affidavit in reply to that of Mr Scott, he states that he has, as of 1 October 2010, obtained some temporary employment in Indonesia. I accept that up until this point, in October 2010, he had tried to obtain alternative employment in his field, but had been unsuccessful (see [61][63] of his affidavit in reply). In his affidavit in reply, Mr Puspitono states:
[64] I have now obtained a temporary contract with Air Atlanta in Indonesia. I commenced on 1 October 2010.
[65] I earn $70 US dollars a day from this contract.
[66] The contract with Air Atlanta is due to expire on 31 January 2011. I am hopeful it that it might be extended into a permanent arrangement but if not, I will need to find alternative work after this date.
428 The Union in its submissions, as noted above, suggests that the Court should regard the period of actual loss and damage as 15 months, as at the time of the trial. I consider that calculation to be correct or near enough. The termination took effect on four weeks notice in about the middle of November 2009. Taking into account the trial date in early January 2011, the period involved is near enough to 15 months.
429 The Union, as noted above, submits that Mr Puspitono has continued to look for work but has been unable to find alternate, full time employment. Having regard to Mr Puspitono's evidence concerning his temporary contract with Air Atlanta in Indonesia, that commenced on 1 October 2010, that would appear to be a correct description of his position, in that the temporary contract should not be equated with "full time" employment. At the date of this judgment the position of Mr Puspitono in relation to Air Atlanta or any other employer is not known and I proceed, in the absence of any other evidence from either party, to assess compensation under this head as best I can.
430 However, the Union, by its submissions does not seek to do more, in these circumstances, than say compensation should be assessed "with the equivalent of 18 months wages being $82,553.58 plus interest on the basis of past and future economic loss". In other words, the Union is content to assume that Mr Puspitono will not suffer a compensable future economic loss going beyond 18 months of the effective dismissal of Mr Puspitono on say 13 November 2009, being four weeks from the 16 October 2009 letter of termination.
431 I find that compensation should be assessed in this regard on the basis of 18 months as submitted by the Union. While some temporary work has in fact been achieved, on the evidence the outlook for Mr Puspitono was and is uncertain. Accordingly I consider that compensation under this head for present and future economic loss should be limited to a total of 18 months, as the applicant submits and be assessed at $82,553.58, subject to bringing to account income earned in this period.
432 The only evidence of Mr Puspitono having work up to the date of trial, following unsuccessful attempts to find work, is the payment of USD$70 per day from 1 October 2010 to 31 January 2011. That constitutes about 123 days at USD$70 per day. Assuming that the contract provides for payment every day, including days off, that would produce a total payment of USD$8,610. Treating the USD$ amount as equivalent or near enough to the AUD$ amount in that period, I would deduct twosevenths (2/7ths) or $2,460 from that sum on account of the possibility that, as in Australia, Mr Puspitono would have worked a schedule and may not have been paid on each and every day during that four month period. The result is I would treat Mr Puspitono as having earned approximately AUD$6,000 (rounded off) in the relevant four month period.
433 Accordingly compensation under this head should finally be assessed at $82,553.58 less $6000, being a total of $76,553.58.
434 I have little doubt and find that but for the contraventions, there is no particular reason on the evidence to consider that the employment of Mr Puspitono under the ITEA with IASA would not have continued throughout the whole of this 18 month period in relation to which I consider compensation should be assessed.
435 The respondent, as noted above, submits that the evidence supports a finding that, without his Garuda authorisation, Mr Puspitono would have been surplus to requirements very quickly and would have been terminated in his employment for that reason. The difficulty with this submission is that, if there had been no contravention, then in all likelihood, Garuda would not have had before it a negative assessment and in all likelihood Mr Puspitono's engagement by IASA would have continued. In any event, there is no evidence to suggest the contrary. There is no compelling evidence that IASA was, for example, about to make Mr Puspitono redundant, as it had purported to do in May 2009, about the time of the renewal. In fact, the evidence of Mr Scott was that he was expecting Mr Puspitono to return to work in midOctober. There was no suggestion that Mr Puspitono's services were not then required or were imminently likely to become "surplus to requirements", as the respondent puts it in its submission. I reject that submission.
436 I also reject the respondent's further submission that the loss identified was not as a consequence of the dismissal, or the other contravening conduct identified. The respondent says it was as the result of Mr Puspitono having a "bad reputation in the community" when people learned about his walk away on 7 April 2008. But for the contravening conduct, the likelihood is that the whole question of disputation between Mr Puspitono and IASA would not have become the subject of discussion in the aircraft maintenance sector, because he would not have been dismissed in October 2009, and the negative assessments made in respect of him would not have been created and put into circulation. His reinstatement in July 2009 under the consent court orders had effectively refuted any submission based on that ground.
437 I have no hesitation in finding that the wages loss contended for was materially caused by the contraventions found in this case.
438 As to the claim for non economic loss, I accept the respondent's submission that there is no medical evidence to support any finding that the dismissal caused stress or, if there is any such evidence, that it identifies the nature or extent of such stress.
439 However, the Union puts its submissions more generally and points to the hurt and humiliation experienced by Mr Puspitono as a result of the contraventions, including the unique nature of his forced departure from Australia.
440 I have little hesitation in finding that the dismissal and the fact of the negative assessment made by IASA and conveyed to Garuda together relevantly hurt and humiliated Mr Puspitono, as he has claimed and was a direct consequence of the contraventions found. I accept Mr Puspitono's evidence that he was distressed at the way IASA treated him, suffered headaches and vomited, and later was upset to find that as a result of IASA's adverse actions his reputation was such that he struggled to find work in Indonesia in his area. I reject the respondent's submission that this reputation was all of his own doing.
441 The question arises, however, whether the Court may order compensation, that is to say the payment of a pecuniary sum on account of hurt and humiliation found to be a direct consequence of contravention of s 340 and s 346 of the FW Act. There is no direct authority under the FW Act concerning this question. However, approaching the question as a matter of first principle, it is plain that s 545(1) is intended to provide the Court with a very broad power to make appropriate orders where contravention is established. In this s 545(2) provides confirmation that certain types of orders - for example, an order awarding compensation for the loss a person has suffered because of a contravention - may be made. But s 545(2), in this regard, expressly states that it has effect "without limiting subs (1)".
442 As a matter of principle it is difficult to see why a compensatory financial order cannot be made in respect of hurt and humiliation (or "shock, distress and humiliation" as s 329(4) of the FW Act describes this head of loss) shown to be a direct consequence of a contravention. At common law, courts have been reluctant to provide damages for a breach of a contract which results in hurt and humiliation, unless the parties to the contract can be taken to have contemplated such damages for breach: Baltic Shipping Co v Dillon [1993] HCA 4; (1992) 176 CLR 344 (Baltic Shipping), for example at 365, Mason CJ. There are special reasons usually cited by courts as to why this common law position in respect of breach of contract should obtain. For example, in Baltic Shipping, at 369, Brennan J suggested that if a promisor in a usual commercial setting were exposed to such an indefinite liability in the event of breach of conduct, the making of commercial contracts would be inhibited.
443 However, the power of the Court under s 545(1) and (2) to make appropriate orders following contravention including an order for compensation is quite divorced from this type of contractual consideration. As a matter broad public policy, the Parliament of Australia has provided that the Court may give appropriate relief where contravention is proved. Relief in these circumstances helps to uphold the policy indicated in the FW Act that, amongst other things, contraventions of the freedom of association provisions should not occur and that appropriate orders should be made to remedy the contravention of such provisions. There is, therefore, in my view, no obvious policy consideration that militates against the making of a compensation order under s 545(1) or a compensation order under s 545(2), for the sorts of reasons that have inhibited the award of damages at common law for a breach of contract which is attended by shock, distress or humiliation.
444 Indeed, there are other indications in the FW Act itself that suggest that s 545(1) and (2) should properly be construed to this effect. For example, s 392(4) of the FW Act expressly provides that compensation should not include compensation for shock, distress or humiliation in respect of a proceeding for unlawful dismissal. That provision does not apply in this case, but is in clear contrast to s 545 which contains no such limitation.
445 Further, in relation to the former WR Act s 298U(c), which empowered the Court to make an order requiring the person or industrial association to pay an employee or independent contractor compensation of such amount as the Court considers necessary, this Court took a broad view of the compensation that should be paid. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122; (2006) 150 IR 179, Marshall J observed that:
'Compensation' is a broad concept which should not be interpreted in a narrow way. In an appropriate case the Court is able to order compensation for non economic loss.
446 In a similar vein, in McIlwain v Ramsey Food Packaging Pty Ltd (No 4) [2006] FCA 1302; (2006) 158 IR 181, at [87], Greenwood J in this Court considered both s 298U(c) and s 298U(e) of the former WR Act and held that the Court had the power to award compensation for non economic loss.
447 These decisions, and the view I take of the Court's power to order compensation in respect of non economic loss for distress, hurt or humiliation is also supported by the decision of the Full Court of this Court, in relation to the power to order compensation under s 170EE of the former WR Act, in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 156-157.
448 In my view, if anything, the power of the Court to make an appropriate order under s 545 of the FW Act is more broadly cast than provisions of the former WR Act.
449 Additionally, I do not consider that the word "loss" in s 545(2), to the extent this provision must be relied upon for the making of a financial compensation order, limits the loss that may be claimed to economic loss. While the respondent contends that a distinction should be drawn between "loss" and "damage", and that shock, distress and humiliation should be considered as "damage", and not as "loss", I find the distinction elusive and unhelpful. Shock, distress and humiliation may be considered, where it exists, as an injury the person suffers which is apt to be described as non economic loss or damage.
450 In my view, Mr Puspitono is entitled to some measure of compensation for the distress and humiliation I have found he suffered as a direct consequence of the contraventions proved by the evidence. The Union claims a non economic loss order under this head of $25,000. I consider such an assessment is too high. I am prepared, however, having regard to the status of Mr Puspitono as a licensed aircraft maintenance engineer, the annual income he received of approximately $55,000 at material times, the level of distress and humiliation he felt as disclosed by his evidence, not only at the fact of dismissal, but due to the negative assessment which adversely affected his reputation in the aircraft maintenance industry in Indonesia, that a non economic loss order in the sum of $7,500 is appropriate.
451 The applicant also claims interest on compensation up to judgment. The respondent makes no submission on interest. So far as interest on compensation, as part of the compensation is concerned, s 547 of the FW Act deals with interest up to judgment, as does s 51A of the Federal Court of Australia Act 1976 (Cth) (FCA). By s 547(1) the section applies to an order (other than a pecuniary penalty order) under Div 2 of Pt 4-1 of Ch 4 of the FW Act, in relation to an amount that a person "was required to pay to, or on behalf of, another person under this Act or a fair work instrument". By s 547(2), in making the order the Court must on application include an amount of interest in the sum ordered, unless good cause is shown to the contrary. By s 547(3), without limiting subs (2), in determining the amount of interest the Court must take into account the period between the day the relevant cause of action arose and the day the order is made.
452 On the face of it, a question arises whether in this case there was relevantly "an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument" at material times that is the subject of the compensation order. The dismissal was made in contravention of the Act but should not have occurred. On one view it might be said the respondent was "required to pay" wages under the ITEA and so the compensation for the lost wages should carry interest. I think the better view, however, is that where adverse actions have resulted in the respondent being ordered to pay compensation, this is not an amount that a person "was required to pay to, or on behalf of, another person under this Act or a fair work instrument". On this basis, s 547 is not applicable.
453 However, I consider s 51A of the FCA applies in any event. Section 51A(1) provides for the inclusion of interest in the sum for which judgment is given, "in any proceedings for the recovery of any money (including any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section".
454 Provisions such as s 51A are to be found in a number of Australian statutes governing the payment of interest up to judgment. The High Court considered the proper construction of s 60(1) of the Supreme Court Act 1986 (Vic), that was not unlike s 51A(1), in Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53; (2001) 207 CLR 520. The plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) gave particular consideration to the expression "debt or damages" that appeared in s 60(1). Their Honours stated, at [41], that:
the phrase should be understood as a composite expression. It embraces any proceeding in which a claim for money is made, in contrast to declaratory relief and claims for specific forms of relief such as mandatory injunctions, charging orders and orders for specific performance. The circumstance that relief of that description is sought in addition to a money claim does not deny the application of s 60 in respect of that money claim.
455 Their Honours cited the earlier decision of the High Court in Crisp & Gunn CoOperative Ltd v The Lord Mayor, Aldermen and Citizens of the City of Hobart (1963) 110 CLR 538, which dealt with the words "action to recover a debt or damages" as it appeared in the Rules of the Supreme Court 1958 (Tas) (Order XXIV, r 1). The Court (MacTiernan, Taylor and Windeyer JJ) noted, at 543, that the expression used in the rule "has a composite significance and, having regard to its history, was doubtless intended to cover any action in which a claim for money, as distinct from other specific forms of relief, was made". Thus, in Crisp & Gunn CoOperative Ltd the Court considered that an action under a statute to recover compensation for compulsory acquisition of land fell within the words "action to recover a debt or damages".
456 In my view, having regard to these decisions of the High Court, a proceeding in respect of a cause of action established by the FW Act that permits an applicant to claim compensation for loss suffered by a person may properly be considered an action in which a claim for money, as distinct from other specific forms of relief (such as reinstatement), is made.
457 In the circumstances, I consider s 51A applies and the various heads of loss assessed should attract interest as part of the judgment sum ordered, as claimed by the applicant (albeit inappropriately under s 547 of the FW Act).
458 Accordingly, first I would award interest on the compensation that represents lost wages and remuneration, as part of his compensation, calculated from the effective date of dismissal on 13 November 2009 up to judgment.
459 Secondly, I would award interest on the items of economic loss from the date the payments of $585 and $254 were made up to judgment.
460 Thirdly, I would also award interest on the non economic loss order of $7,500 from the date of effective dismissal on 13 November 2009, when the relevant distress, hurt and humiliation commenced, up to judgment.
461 As to the calculation of interest under s 51A, the rates set out in the Court's Practice Note CM16, PreJudgment Interest are applicable.
Summary of compensation order
462 In these circumstances I would order compensation calculated as follows:
(1) Economic loss - $839 (plus interest to be calculated).
(2) Loss of wages and remuneration - $76,553.58 (plus interest to be calculated).
(3) Non economic loss - $7,500 (plus interest to be calculated).
Total compensation $84,892.58 (plus relevant interest).