Declaratory relief
71 In addition to the imposition of penalties, the Ombudsman seeks declaratory relief to record each of the Agreed Contraventions. The AWU does not oppose the grant of such relief. The parties jointly propose declaratory relief in the following terms:
1. In contravention of s 340 of the Fair Work Act 2009 (FW Act), the Australian Workers' Union (AWU) took adverse action against its member, [one of the Relevant Employees], because he had exercised a workplace right not to take protected industrial action on 3 March 2015. The adverse action was constituted by issuing a letter dated 16 March 2015 summonsing [that Relevant Employee] on a charge of misconduct under the Rules of the AWU (Rules) without a reasonable basis and subjecting [that Relevant Employee] to an unreasonable charge of misconduct under the Rules between 16 March and 2 September 2015.
2. In contravention of s 340 of the FW Act, the AWU took adverse action against its member, [the other of the Relevant Employees], because he had exercised a workplace right not to take protected industrial action on 3 March 2015. The adverse action was constituted by issuing a letter dated 16 March 2015 summonsing [that Relevant Employee] on a charge of misconduct under the Rules without a reasonable basis and subjecting [that Relevant Employee] to an unreasonable charge of misconduct under the Rules between 16 March and 2 September 2015.
3. In contravention of s 346 of the FW Act, the AWU took adverse action against its member, [one of the Relevant Employees], because he did not engage in industrial activity within the meaning of ss 347(b) and 347(f) of the FW Act, namely protected industrial action on 3 March 2015. The adverse action was constituted by issuing a letter dated 16 March 2015 summonsing [that Relevant Employee] on a charge of misconduct under the Rules without a reasonable basis and subjecting [that Relevant Employee] to an unreasonable charge of misconduct under the Rules between 16 March and 2 September 2015.
4. In contravention of s 346 of the FW Act, the AWU took adverse action against its member, [the other of the Relevant Employees], because he did not engage in industrial activity within the meaning of ss 347(b) and 347(f) of the FW Act, namely taking protected industrial action on 3 March 2015. The adverse action was constituted by issuing a letter dated 16 March 2015 summonsing [that Relevant Employee] on a charge of misconduct under the Rules without a reasonable basis and subjecting [that Relevant Employee] to an unreasonable charge of misconduct under the Rules between 16 March and 2 September 2015.
72 I recently had occasion to consider the court's power to grant declaratory relief that does nothing more than record that a respondent's conduct was engaged in in contravention of a statute: Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, [73]-[98] (Snaden J). After referring to authority, I observed (at [85]):
Subject to other circumstances that might inform an exercise of the court's discretion, I accept - indeed, am bound to observe - that the court has the power to grant declaratory relief that does nothing more than state that a respondent's prior conduct was engaged in in contravention of a statute… I do so with difficulty and scepticism; all the same acknowledging that this court makes orders of that nature with a frequency that reflects a view that is "firmly entrenched in history": Justice Robert French, 'Declarations - Homer Simpson's remedy - is there anything they cannot do?' [2007] FedJSchol 24, [50].
73 I then explored the matters that might inform the court's discretion to exercise the power that I accepted that it had; and, in particular, the circumstances in which it might be thought that there was utility in doing so. I do not restate the matters of principle to which I referred, save for my conclusion (at [98]):
Despite what would otherwise be my strong contrary inclination, I accept that the court is able to grant declaratory relief as a means of marking its disapproval of conduct found to have been undertaken in breach of a statute. Alternatively, I accept that there might be circumstances where declaratory relief is appropriate to realise some broader educative or deterrent effect, or otherwise to vindicate or assist an applicant's actions.
74 In the present case, the relief that the parties agree is appropriate does little more than record what the parties themselves have agreed and what I, by the conclusions contained in these reasons (above, [29]), have accepted. That is not an appropriate deployment of the remedy: Warramunda Village v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ).
75 Further, I do not accept that declaratory relief in this case might serve as a record of my decision any more formally than do these reasons. In Pattinson (at [122]-[123]), I made the following observations on that score:
The orders that the court will pronounce are not to be read in a vacuum. In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA (with whom Hodgson JA and Tobias JJA agreed) observed (at 78):
The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract.
This court found to similar effect in Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78 (Drummond, Sundberg and Finkelstein JJ). There, Drummond J (with whom Sundberg and Finkelstein JJ agreed), said (at 78-79):
It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand an order in isolation from the context of the reasons for it being made. The Full Court of the Supreme Court of Queensland, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made.
Other judges of this court have expressed similar views: Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385, 399 (Weinberg J); Smith v Comcare (2014) 64 AAR 205, 218 (Robertson J); Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2016] FCA 1129, [13] (Moshinsky J); Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1441, [53] (Moshinsky J).
76 There is nothing peculiar about the Agreed Contraventions that warrants their expression by means of declaratory relief. The form of the relief that is sought does not obviously convey any sense of disapproval by the court of the AWU's Contravening Conduct; and certainly not anything beyond that which is conveyed by these reasons. There is, perhaps, a measure of convenience that a short-hand, declaratory expression of the Agreed Contraventions might realise, particularly given that the pecuniary penalties that will be imposed will be referrable only to two of them: see, in that vein, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555, [78] (Wheelahan J). However, declaratory relief that does nothing more than record that historical conduct was embarked upon in breach of a statutory injunction should not, in my view, be granted merely because it is convenient (or not inconvenient) to grant it, at least not in a relatively straightforward case such as this one, in which the relevant contraventions are agreed, the reasons for judgment are not especially lengthy, and the conclusions to which those reasons give voice are reasonably accessible. In order that declaratory relief might be appropriate, there should be some utility to what is sought that is founded in any one or more of the ways that the authorities have historically recognised (as to which, see above, [73]). In the absence of there being some utility in doing so, it is not appropriate to grant declaratory relief: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, 613 [52] (Gaudron J); Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99, [3] (Allsop CJ, Middleton and Davies JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ); Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406, 414 (Lockhart J, with whom Spender and Cooper JJ agreed).
77 I am not persuaded that that utility here exists. It is not apparent how declaratory relief in the form sought might realise any educative or deterrent effect additional to that which flows from these reasons and/or the orders that I will make. Likewise, I do not accept that the Ombudsman's efforts in prosecuting this action will be vindicated any more than they will be by these reasons and/or the penalty orders that I will make.
78 It is simply not necessary or useful to record in declaratory form that the four Agreed Contraventions occurred (as I have accepted).
79 Finally, the terms of the declaratory relief that the parties have proposed (above, [71]) are problematic in at least two senses. First, all four of the proposed declarations refer to the Misconduct Charges having been "unreasonable" or laid "without a reasonable basis". That language is conclusory: there is no recitation or analysis of the facts or circumstances by reason of which those descriptions might fairly apply (assuming that they need to, which is an assumption that isn't obviously well-grounded). Second, each of the proposed declarations refers to the AWU "subjecting" each of the Relevant Employees to the Misconduct Charges. Again, that language is conclusory: it does not describe the conduct (namely the omission described at [26] above) by which that subjection was constituted. At least for those reasons, the declaratory relief that the parties jointly propose amounts to a "bad precedent" of the kind against which the High Court has counselled: Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53, 91 [90] (Gummow, Hayne and Heydon JJ).
80 It follows that no declaratory relief will be granted.