Fair Work Ombudsman v Taing [2025] FCA 1401

(a) within 28 days of these orders, paying the amount of $44,877.25 owed to 13 of the former employees, as identified in Column D of Table 1 in Annexure B attached to the notice of appeal;

(b) within 7 days after compliance with order 1(a), providing evidence to the Appellant that the payment required by order 1(a) was made.

1. Pursuant to section 547(2) of the FW Act, within 28 days of these orders, Mr Taing and Mr Bui, jointly and severally, pay interest on the payment required by order 1(a) for the period 2 December 2022 to the date of this order at the rates specified in cl 2.2 of Practice Note GPN-INT.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. This is an appeal of the Fair Work Ombudsman (the FWO or Appellant) from a decision of the Federal Circuit and Family Court of Australia (Division 2) in Fair Work Ombudsman v Taing [2024] FedCFamC2G 270 (Primary Judgment or PJ). This appeal concerns the causation analysis involved in the question of whether to award compensation under s 545(1) and (2)(b) of the Fair Work Act 2009 (Cth) (FW Act) in circumstances where a person has failed to comply with a compliance notice issued under s 716(2) of the FW Act.
2. Only Mr Taing (the First Respondent) appeared and made submissions opposing the orders sought by the FWO in the appeal. Mr Bui (the Second Respondent) did not appear or file a submitting notice. Together, Mr Taing and Mr Bui will be referred to as the Respondents.
3. It is convenient to make a brief observation about the way in which this proceeding came before me. This appeal was heard on the same day as the appeal in Luong v Fair Work Ombudsman [2025] FCA 1400 (Luong). My decisions in each case have been handed down on the same day. The two cases involve different factual situations, different primary judgments, and the parties in each case have taken different approaches. However, both cases raise the same issue regarding the availability of an order for compensation under ss 545(1) and (2)(b) of the FW Act in the context of a breach of s 716(5).

1. The facts are set out in the Primary Judgment at [4]-[23], and were not disturbed on appeal. The facts relevant to this appeal are as follows.
2. Mr Taing and Mr Bui were joint and several trustees of the VB888 Unit Trust (ABN 4268 4853 199) (Trust) which operated a Gami Chicken and Beer Restaurant trading as "Gami - Southland" located at R208 Southland Shopping Centre, 1239 Nepean Highway, Cheltenham in the State of Victoria (the Business). The Business relevantly employed 16 individuals (Former Employees) set out in Column A of Table 1 in Annexure A to the statement of agreed facts dated 20 July 2023 filed in the Court below (SOAF).
3. An investigation into the Business's compliance with workplace laws commenced in or around May 2021. In the course of the investigation, Fair Work Inspector Leigh Pace (FWI Pace) formed a belief that the Respondents had contravened terms of the Restaurant Industry Award 2020 (Award) and provisions of the National Employment Standards (NES).
4. On 31 October 2022, FWI Pace issued a compliance notice under s 716(2) of the FW Act (Compliance Notice). The Compliance Notice required the Respondents to take specified actions to calculate and remedy the effects of the contraventions by 2 December 2022, and provide evidence of compliance by 9 December 2022.
5. The SOAF recorded the parties' agreement that the Respondents failed to comply with the Compliance Notice.
6. On 22 December 2022, Mr Taing paid an amount of $800 to each of the Former Employees.
7. On 9 March 2023, the FWO sent a letter to Mr Taing and Mr Bui which advised that the matter had been referred to the FWO's legal compliance and enforcement branch, and gave them a final opportunity to take actions required by the Compliance Notice, or to provide any reasonable excuse for their failure to do so. The Respondents did not take the actions required by the Compliance Notice or provide any reasonable excuse.
8. It should also be noted that the FWO alleged contraventions of ss 718A and 535(1) of the FW Act, relating to knowingly or recklessly producing false or misleading payslips to FWI Pace, and failing to make or keep records relating to the termination of the employment of the Former Employees. The primary judge held that the Respondents had contravened these provisions. Her Honour made declarations that the First Respondent contravened:

(1) s 718A(1) of the FW Act, by knowingly or recklessly producing false or misleading records to an inspector;

(2) s 535(1) of the Act, by failing to make or keep records relating to the termination of employment of the Former Employees; and

(3) s 716(5) of the Act, by failing to comply with the Compliance Notice.

1. Similar declarations were made in respect of the Second Respondent. A declaration was made that a third respondent (who is not a party to this appeal) contravened s 718(1) of the FW Act. In consequence, the Court ordered that:

(a) The First Respondent pay a pecuniary penalty of $15,000 for his contraventions of the Act per declarations 1(a), (b) and (c);

(b) The Second Respondent pay a pecuniary penalty of $12,500 for his contraventions of the Act per declarations 2(a), (b) and (c); and

(c) The Third Respondent pay a pecuniary penalty of $4,000 for his contravention of the Act per declaration 3.

1. Sections 716 and 717 of the FW Act provide for a scheme in relation to compliance notices in the following terms:

716 Compliance notices

Application of this section

(1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award; ...

Giving a notice

(2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:

(a) take specified action to remedy the direct effects of the contravention referred to in subsection (1) (including to calculate and pay the amount of any underpayment);

(b) produce reasonable evidence of the person's compliance with the notice.

(a) set out the name of the person to whom the notice is given; and

(b) set out the name of the inspector who gave the notice; and

(c) set out brief details of the contravention; and

(d) explain that a failure to comply with the notice may contravene a civil remedy provision; and

(e) explain that the person may apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:

(i) the person has not committed a contravention set out in the notice;

(ii) the notice does not comply with subsection (2) or this subsection; and

(f) set out any other matters prescribed by the regulations.

Relationship with enforceable undertakings

(4) An inspector must not give a person a notice in relation to a contravention if:

(a) the person has given an undertaking under section 715 in relation to the contravention; and

(b) the undertaking has not been withdrawn.

Relationship with civil remedy provisions

(4A) An inspector must not apply for an order under Division 2 of Part 4‑1 in relation to a contravention of a civil remedy provision by a person if:

(a) the inspector has given the person a notice in relation to the contravention; and

(b) either of the following subparagraphs applies:

(i) the notice has not been withdrawn, and the person has complied with the notice;

(ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with.

Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.

(4B) A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:

(a) to have admitted to contravening the provision; or

(b) to have been found to have contravened the provision.

Person must not fail to comply with notice

(5) A person must not fail to comply with a notice given under this section.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(6) Subsection (5) does not apply if the person has a reasonable excuse.

717 Review of compliance notices

(1) A person who has been given a notice under section 716 may apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:

(a) the person has not committed a contravention set out in the notice;

(b) the notice does not comply with subsection 716(2) or (3).

(2) At any time after the application has been made, the court may stay the operation of the notice on the terms and conditions that the court considers appropriate.

(3) The court may confirm, cancel or vary the notice after reviewing it.

1. At the relevant time, s 545 of the FW Act relevantly provided:

545 Orders that can be made by particular courts

Federal Court and Federal Circuit and Family Court of Australia (Division 2)

(1) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Note 1: For the court's power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

Note 3: The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).

(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) 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;

1. General observations relevant to the statutory scheme are set out in Luong at [34]-[40]; [70]-[80]. I do not repeat them here, save to say that I consider that they are generally apposite.

1. The primary judge was satisfied that the facts alleged in the statement of claim and the admissions of the Respondents by way of the SOAF established that the Respondents contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice (PJ[41]). Her Honour made declarations to this effect, and made orders for the payment of pecuniary penalties under s 546 of the FW Act.
2. The Compliance Notice required that the recipient of the notice identify each employee who was not paid (but was required by the Award or NES to be paid) the entitlement the subject of the contravention, including by identifying the number of hours worked, the amount paid, and the amount of the underpayment. It further required that after the calculation was carried out, the amount of the underpayment be repaid to the employees. A full copy of the Compliance Notice is included as Annexure A to the Primary Judgment.
3. It was an agreed fact in the SOAF that the amount of $44,887.25 was owed to 13 out of the 16 Former Employees. An annexure to the SOAF identified in respect of each Former Employee:

(1) The Former Employee's name, role (classification), employment status and employment period.

(2) The clause of the Award or NES alleged to have been breached, the amount of the underpayment alleged, and the hours for which the individual was underpaid.

(3) A calculation identifying the total outstanding underpayment to each Former Employee.

1. The parties jointly "recommended" that the Court make an order pursuant to s 545(1) of the FW Act that the Respondents jointly and severally remedy the effects of their contravention of s 716(5) by, among other things, paying the outstanding underpayment amount, and providing evidence to the FWO that the outstanding underpayment amount was rectified.
2. Thus, the FWO sought orders under s 545(1) of the FW Act requiring the Respondents to compensate the relevant Former Employees the outstanding $44,887.25, on the basis that the loss was suffered because of the Respondents' contravention of s 716(5).
3. Her Honour declined to make a compensation order under s 545(1) (read with s 545(2)(b)) for two reasons:

(1) First, her Honour considered that such an order was not within the Court's jurisdiction, because the loss suffered by the Former Employees was not caused by the Respondents' contravention of s 716(5). Her Honour stated that (at PJ[80]):

...any underpayment is a loss occasioned by the failure to pay an entitlement for work performed in accordance with the relevant modern award and/or the NES. Those entitlements variously arose some time before the statutory compliance notice was issued (spanning 2017 to 2021 according to the FWO Inspector's reasonable belief).

(2) Second, her Honour stated that in any event she would not have been minded to exercise the discretion to order compensation in the present case. It is useful to set out her Honour's reasoning on this issue in full (at PJ[82]-[86]):

The application in this matter sought relief for contraventions of ss.718A, 535(1) and 716(5) of the Act. The pleadings do not articulate, nor have the Respondents admitted, contravention(s) of obligations to pay minimum terms and conditions - such as of s.44 (contravening the NES) and/or s.45 (contravening a modern award) of the Act - or involvement in such contravention. The findings of contraventions that I have made above are limited to contraventions of ss.718A, 535(1) and 716(5).

As observed in Fair Work Ombudsman v Carers Portland Inc [2023] FedCFamC2G 620 per Blake J, the Act expressly sets out a pathway for pursuing contraventions of an award, an enterprise agreement or the NES. It would potentially undermine the integrity of that framework were an application for contravention of civil remedy provision(s) to result in a compensation order directed at rectifying a separate and distinct contravention of a civil remedy provision(s) which was not part of the originating claim or pleadings.

In the present case, the statutory compliance notice was not withdrawn and was not complied with. The FWO is not apparently precluded (by operation of s.716(4)) from making application for orders in relation to contraventions of s.44 (contravening the NES) and s.45 (contravening a modern award).

It is not, in my view, appropriate to exercise the discretion where a proceeding for contravention of ss.718A, 535(1) and 716(5) is essentially a vehicle to pursue a remedy to rectify a different contravention. The Respondents' admissions, whilst relevant to the present case, do not justify a different result in the form they were made.

The penalties in this case will be ordered to be paid to the Commonwealth of Australia. It will be a matter for the FWO whether it elects to direct any of the proceeds of the penalties obtained in these proceedings toward compensating the former employees.

1. The notice of appeal contends that in determining it was not appropriate to exercise the Court's discretion to make orders under s 545 of the FW Act that the Respondents compensate the relevant Former Employees, the primary judge erred as follows:

In determining that it was not appropriate to exercise the Court's discretion to make orders under s 545 of the Fair Work Act 2009 (Cth) (FW Act) that the First and Second Respondents compensate the Employees for the loss that occurred by the First and Second Respondents' failure to comply with the Compliance Notice, the learned primary judge:

1. erred in finding that the compensation sought was caused by breaches of an Award or the National Employment Standards rather than the First and Second Respondents' failure to comply with the Compliance Notice and that there was no causal connection between the compensation sought and the failure to comply with the Compliance Notice;
2. erred in finding, in the alternative, that it was not appropriate to grant compensation orders on a discretionary basis, because:
   1. the Appellant had failed to prove contraventions of the Award or the National Employment Standards when the Appellant had no such obligation to do so;
   2. the Appellant retained the ability to make an application for orders in relation to contraventions of an Award or the National Employment Standards; and
   3. the Court had imposed civil penalties on the First and Second Respondents, including in finding that the Appellant had the ability to direct any of the proceeds of the penalties obtained toward compensation.

1. Mr Taing sought to argue that the Primary Judgment was correctly decided and should be upheld.
2. Mr Taing also sought to explain that the Business experienced "significant financial and operational challenges", that he is working hard to seek to pay debts owed to the Former Employees and other bodies, and that the prolonged nature of the case has caused him real stress. He identified some additional compliance efforts which he contends were not encompassed within the FWO's submissions, including:

• Initial Partial Payment: The Respondent made partial payments totalling $12,800 on 22 December 2022.
• Record-Keeping: The Respondent did retain some employee records, despite claims of full non-compliance with s 535(1) of the Fair Work Act.

1. I accept those matters for the purposes of this appeal. I observe that the SOAF included reference to the payment made by Mr Taing on 22 December 2022. I also observe that the contravention relating to deficient record-keeping is not the subject of this appeal.

1. Ground 1(a) of the notice of appeal contends that the primary judge:

erred in finding that the compensation sought was caused by breaches of an Award or the National Employment Standards rather than the First and Second Respondents' failure to comply with the Compliance Notice and that there was no causal connection between the compensation sought and the failure to comply with the Compliance Notice;

1. As set out above, it is clear that her Honour declined to make the order sought because she concluded that the relevant loss did not arise because of a failure to comply with the Compliance Notice but because of the failure to comply with the Award and the NES (PJ1[80]).
2. In so reasoning, her Honour fell into error. That is because:

(1) The failure to comply with the Compliance Notice need not be the only cause of the loss: it must be a cause of the loss and damage sustained (Transport Workers' Union of Australia v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216; 334 IR 187 (Qantas) at [76] (Lee J), citing Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [27] (Lee J)). Thus, the fact that the loss may be properly said to have been caused by a failure to comply with (for example) s 44 of the FW Act, does not exclude the conclusion that s 716(5) could also be a relevant cause of the loss.

(2) Principles relevant to causation are set out in Luong at [70]-[80]. I refer to and incorporate that analysis in full, but, by way of summary, note that the causation inquiry could be said to involve consideration of the counterfactual, i.e. an examination not of what did happen but of what would or might have occurred but could no longer occur because of the contravention (Qantas at [70]-[71], citing Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [28] (Allsop CJ, Mansfield and Siopis JJ)).

(3) Fixing compensation under s 545 is a statutory task, and the court must not substitute that task with approaches derived from the general law (Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 (Dafallah) at [149] (Mortimer J, as her Honour then was)).

1. Taken together, the relevant inquiry was whether the contraventions of s 716(5) were a cause of the loss to the Former Employees. On the facts admitted by the Respondents to this appeal, the Compliance Notice created an obligation to pay the amounts that would have been identified in the calculations set out. That is because:

(1) Paragraphs [9]-[14] of the SOAF admit that the Respondents failed to take "specified actions" and produce evidence of having done so, and accordingly, that they failed to comply with the Compliance Notice.

(2) The "specified actions" are defined in the SOAF to include performing the required calculations and making payment.

(3) Paragraph 45 of the SOAF identifies the amount of $44,887.25 of outstanding entitlements that remain unpaid. When read with paragraph [47(a)] of the SOAF, which recommends that the Court make a compensation order in the amount of $44,887.25, it can be inferred that the parties agreed that the calculations would have resulted in an obligation to pay that amount.

1. Accordingly, I accept that the SOAF makes clear that the parties before the Court accepted that as a matter of fact, if the Respondents had complied with s 716(5), the calculations would have identified the amount of $44,887.25 and the obligation to pay that amount to the relevant Former Employees would have arisen.
2. Put another way, had the breach of s 716(5) not occurred, the Compliance Notice would have been complied with, and each Former Employee listed in the Compliance Notice would have received the amount set out in the annexure to the SOAF. The failure to comply with the Compliance Notice therefore caused the loss in a relevant sense.
3. That is sufficient to establish causation for the purposes of s 545 of the FW Act.
4. It does not follow that a court is required to make an order to have that amount paid to the employees. The court must be satisfied that it is appropriate to do so, and one of the relevant factors to that analysis can be whether making the order would undermine the FW Act (Dafallah at [156]).
5. Having identified error in the statutory task, it is appropriate that the discretion be re-exercised. I undertake this task below.

1. Ground 1(b) argues that her Honour erred in concluding that it was not appropriate to grant compensation orders in the exercise of discretion because her Honour took into account that:

(1) the Appellant had failed to prove contraventions of the Award or the NES, when, the Appellant argues, it had no such obligation to do so;

(2) the Appellant retained the ability to make an application for orders in relation to contraventions of an Award or the NES; and

(3) the Court had imposed civil penalties on the First and Second Respondents, and the Appellant had the ability to direct any of the proceeds of the penalties obtained toward compensation.

1. Her Honour reasoned in the alternative that the compensation order sought was "directed at rectifying a separate and distinct contravention of a civil remedy provision that was not part of the originating claim or pleadings" (PJ[83]). Her Honour's conclusion in this regard was, with respect, in error. In particular:

(1) Section 716(1) operates where an inspector reasonably believes that a person has contravened any one of a number of terms of employment instruments, including for example, a provision of the NES or a term of a modern award. Thus, the existence of a reasonable belief as to the existence of such a contravention is a pre-condition to issuing a compliance notice.

(2) Section 716(2) makes clear that a compliance notice can require a person to take a specified action to remedy "the direct effects of the contravention referred to", including, for example, a breach of the NES or term of a modern award. In this respect, it can be seen that the purpose of a compliance notice is, in part, to remedy the direct effects of the contraventions listed in s 716(1). Carrying out calculations, and making payments are identified as steps which a compliance order can require (s 716(2)).

(3) Section 716(5) is specifically identified as a civil remedy provision, to which the full suite of remedies available under s 545 apply.

1. As a result, the compliance notice regime is directed to permitting a compliance notice to have effect in accordance with its terms, and for a breach to be actioned under s 545. The fact that doing so can incorporate the reasonable belief of a breach of a different provision does not prevent this conclusion. To the extent that it might be said that the existence of a pathway to enforce s 44 and 45 excludes the availability of an order for breach of s 716(5) this would appear to be an argument based on the principle espoused in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 (Anthony Hordern). In that case the High Court considered the Commonwealth Conciliation and Arbitration Act 1904 (Cth), which appeared to contain two powers for making an award with respect to union preferences: one specific and one general power. The specific power had a particular hurdle before it could be used. Justice McTiernan (in the majority) said at 20:

Reading the Act as a whole, there does not appear to me to be any reason for holding that Parliament intended to give the Court two powers, entirely different in scope, to order 'preference'. I do not think that the Legislature intended that, in a case in which preference was in dispute, the Court should be free to make any award it deemed fit and that the award might be entirely unconditional, whereas, in a case in which preference was not in dispute, the court should be fettered and its award moulded by the provisions of s 40.

1. The jurisprudence which followed the articulation of the Anthony Hordern principle was explained in detail in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 (Nystrom) by Gummow and Hayne JJ. Their Honours concluded that (at [59], emphasis added):

Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power.

1. There are some aspects of the legislative scheme that are worth noting:

(1) Proceedings for breach of s 716(5) may only be commenced by an inspector, whereas proceedings for breach of ss 44, 45 and 50 are available to employees, employee organisations, or inspectors.

(2) If a person complies with a compliance notice, then they cannot be subject to proceedings under ss 44, 45 and 50, which each carry more substantial penalties (600 penalty units for a serious contravention or 60 penalty units for other contraventions) than those available for a breach of s 716(5) (30 penalty units in all instances) (s 716(4A)(b)(i)). Nor could it be said in subsequent proceedings that they had been found to have breached ss 44, 45 and 50 (s 716(4B)).

(3) Section 717 provides a process by which a person can challenge the notice, including on the basis that the person has not committed a contravention set out in the notice, or that it fails to comply with certain formal requirements. That process is available in addition to any judicial review process.

1. They are therefore different powers, directed to different aims, albeit that in some instances, there are overlapping or consistent outcomes. There is nothing in the text, context or purpose of s 545 which limits or excludes an application under s 716(5) where the compliance notice was issued on the basis of a reasonable belief in a contravention that is also a civil remedy provision.
2. Her Honour went on to note that even if an order were available, she would not, in the exercise of her discretion, make the order sought by the FWO.
3. Given the erroneous reasoning that I have identified above, it is appropriate that the discretion be re-opened. It is not necessary to separately consider whether her Honour erred in the manner in which the discretion was considered, including by taking into account that the Court had imposed civil penalties on the First and Second Respondents, and in finding that the Appellant had the ability to direct any of the proceeds of the penalties obtained toward compensation.

1. The Respondents, by way of the SOAF, admit that they received the Compliance Notice. By its terms, it required the carrying out of calculations, and the payments of amounts in accordance with those calculations. There is no challenge to the validity of the Compliance Notice, or its terms. It therefore created an obligation to take the steps set out within it. A failure to do so was a contravention of a civil remedy provision.
2. The Respondents admit that had the Compliance Notice been complied with, Former Employees would have received the amounts set out in the annexure to the SOAF.
3. As set out at [29]-[30] above, I accept therefore that the obligation to make the payments arose under the Compliance Notice, and that but for the failure to comply with it, the payments would have been made. That breach is therefore one of the causes of the Former Employees not receiving those payments. I am therefore satisfied that the Appellant has established the necessary causal connection between the contravention and the Former Employees' loss.
4. It is next necessary that I consider it "appropriate" to make the order. The primary judge in this case was correct to observe that the use of the compliance notice regime in a manner that undermines the FW Act could be a reason for the Court to conclude that it is not "appropriate" to make the order sought. An example is in the case of Dafallah at [156], where Mortimer J considered that:

Where the subject matter of the contravention is a breach of an agreement closely connected to the termination of a person's employment for poor performance, as is the case here, the Court must, in exercising power under s 545(1), be careful not to undermine the operation of the unfair dismissal provisions, and the limits Parliament has placed on them. That is especially so in circumstances where unfair dismissal proceedings have been unsuccessfully pursued, as is the case here. An order for compensation which has such an effect may not, in my opinion, be an "appropriate" order for the purposes of s 545(1).

1. Her Honour was concerned in that case, where certain conduct had not met the standard of an unfair dismissal proceeding, to ensure that an alternative pathway was not available under s 545 to relitigate a previously unsuccessful proceeding. As observed by Shariff J in Han v St Basil's Homes (No 2) [2025] FCA 448 at [43]:

The governing consideration is what the Court considers "appropriate": Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [148]-[161] (Mortimer J, as her Honour then was). The statutory requirement that an order is "appropriate" highlights the necessity that any order is one the Court considers to be judicially appropriate, or "just": Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [18] (Lee J). Such a power leaves room for a Court to find in a given case that less than full compensation might be appropriate: Dafallah at [157].

1. Despite his earlier agreement, reflected in the SOAF, the First Respondent in this Court argued in effect that it was not appropriate to make the order sought by the FWO. He explained that he had been doing his best to recover from the events that had occurred, and working hard to do so. The prolonged nature of the proceedings had caused him significant stress. He said that he has sought to repay the amounts owing, and that I should recognise that he has made good faith efforts to "mak[e] things right". He argued in addition that the fines already imposed were suitable responses to the breach, and operated as a warning to others, which were sufficient to address the issue. He argued that additional compensation orders would be excessive given his limited resources, and that it would be fair to dismiss the appeal.
2. I have taken all of the matters raised in Mr Taing's written and oral submissions into account. To the extent that it is relevant to make clear, I do not consider that it is open to the First Respondent to resile from the SOAF that was proffered before the Court below. In any event, I had understood his submissions in this case to be principally concerned with the question of whether it was appropriate to make an order for compensation.
3. I have concluded that it is appropriate to make the order sought by the FWO. That is because:

(1) I am satisfied that the amount of $44,877.25, being the loss to Former Employees due to underpayment, was causally connected to the failure to comply with the Compliance Notice.

(2) The Respondents agreed before the Court below that it was appropriate to make the orders sought (indeed, they joined in "recommending" that they be made).

(3) I do not perceive, in this case, that there is any sound concern that making the orders sought would undermine any protection or process otherwise conferred by the FW Act (particularly given the factual substratum underpinning this case was relevantly agreed).

(4) While I understand that these proceedings have been ongoing for a prolonged period of time, and have caused the First Respondent stress, in circumstances where there is no dispute as to the amounts in question, it is not appropriate that the Respondents retain the benefit of the failure to comply with the Compliance Notice by not compensating the relevant Former Employees.

1. Section 547(2) of the FW Act provides that the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary. No argument was advanced as to why an order should not be made for the payment of interest (save for the general argument of financial distress). I do not consider that is a proper reason for declining to order interest given the Respondent has otherwise had the benefit of the funds for the intervening period. The period of interest is the period between the day the relevant cause of action arose and the day the order is made (s 547(3)). The cause of action arose upon the failure to comply with the Compliance Notice. The Compliance Notice required the Respondents to take specified actions by 2 December 2022, which were not taken. Accordingly, I consider that the contravention (and, accordingly, the relevant cause of action) occurred on 2 December 2022.
2. The parties did not make submissions on the amount of interest payable. I note that the Court's General Practice Note - Interest on judgments (GPN-INT) states (footnotes omitted):

2.2 Parties and their lawyers should expect that when, pursuant to s 51A(1)(a), interest in respect of a pre-judgment period is to be included in a judgment, the Court will have regard to the following rates, being rates agreed upon by the Discount and Interest Rate Harmonisation Committee established following a referral by the Council of Chief Justices of Australia and New Zealand:

(a) in respect of the period from 1 January to 30 June in any year - the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced; and

(b) in respect of the period from 1 July to 31 December in any year - the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

2.3 Parties and their lawyers should also expect that when, pursuant to s 547(2) of the Fair Work Act, interest in respect of a pre-judgment period is to be included in an order (other than a pecuniary penalty order) for payment of an amount under the Fair Work Act or a fair work instrument, the Court will have regard to the rates set out in paragraph 2.2 of this practice note.

1. I consider that the rate of interest should be that set out in paragraph [2.2] of GPN-INT (see Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; 275 IR 285 at [323] (Collier J)).
2. Having regard to my conclusions set out above, I will make orders that:

(1) pursuant to s 545(1) of the FW Act, Mr Taing and Mr Bui, jointly and severally, remedy the effects of their contravention of s 716(5) of the FW Act by:

(a) paying the amount of $44,877.25 owed to 13 of the Former Employees, as identified in Column D of Table 1 in Annexure B attached to the notice of appeal, within 28 days of this order;

(b) pursuant to section 547(2) of the FW Act, Mr Taing and Mr Bui, jointly and severally, pay interest on the compensation owed to the Former Employees pursuant to the order contemplated in paragraph [54(1)(a)] above.

1. Given the individuals who will receive the compensation payments are not parties to this proceeding, and the FWO will not otherwise receive the funds, it is appropriate that I make an order requiring that the Respondents provide evidence to the Appellant that the payment required by the order identified at paragraph [54(a)] was made.
2. However, I decline to make an order for the carrying out of further calculations. It is appropriate that these proceedings be brough to a conclusion, and that there is certainty as to the extent of any liability. I therefore decline, in the exercise of my discretion, to make the order sought at [1(b)] of the notice of appeal to require further calculations and payments to be carried out in respect of any additional superannuation contributions on the gross underpayments.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.