Whether the FW Act is an exclusive code?
63 It is common ground that the FW Act creates the obligation for parties to an award to be bound by its terms, and provides specific mechanisms for obtaining orders in relation to contravention of an award and for compensation to be awarded in respect of loss or damage upon a finding of contravention. The FW Act provides as follows:
(a) section 45 provides that "a person must not contravene a term of a modern award";
(b) section 48(1) provides that a modern award covers an employee or employer if the award is expressed to do so. It is alleged that during the relevant period delivery drivers and in-store workers employed by the Franchise Operators were covered by the Award;
(c) item 2 of the table in section 539 in Pt 4-1, Div 2, provides that s 45 is a civil remedy provision and that, amongst other persons, an employee may apply to specified courts, including this Court, for orders in relation to a contravention or proposed contravention of the section;
(d) section 540(1)(a) provides that an employee may apply for an order under Pt 4-1, Div 2 in relation to a contravention or proposed contravention of a civil remedy provision, only if the employee is affected by the contravention or will be affected by the proposed contravention;
(e) section 544 provides that, subject to some exceptions which are not relevant in this case, a person may only apply for an order in relation to a contravention of a civil remedy provision if the application is made within six years after the day on which the contravention occurred;
(f) s 545(1) provides that this Court "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" (emphasis added);
(g) s 545(2)(b) relevantly provides, without limiting subsection (1), that orders that this Court may make include "an order awarding compensation for loss that a person has suffered because of the contravention" (emphasis added);
(h) s 545(5) provides that a court must not make an order in relation to an underpayment that relates to a period that is more than six years before the proceedings commenced;
(i) s 547 provides that where a person is required to pay, whether on their own behalf or on behalf or another, an amount to a person by an order (other than a pecuniary penalty order) made under Div 2, the Court must include, on application, an amount of interest on the sum ordered, unless good cause is shown to the contrary;
(j) s 550 in Div 4 provides that a person who is involved in the contravention of a civil remedy provision, such as s 45, is taken to have contravened that provision. That is, it permits proceedings to be brought against an accessory; and
(k) since 15 September 2017, ss 558A and 558B of the FW Act have provided a right by an employee to enforce payment of award entitlements, among other civil remedies, owed by a franchisee by proceeding directly against a head franchisor or relevantly related holding company.
64 Domino's contention that the FW Act comprises a comprehensive code for the enforcement and recovery of entitlements under an award and that no claim in relation to award entitlements is available to the applicant and group members under the ACL is not without force. It is, however, at least reasonably arguable that a claim under the ACL is also available to the applicant and group members.
65 First, Byrne does not directly relate to the position in the present case. It concerned whether the terms of an award were to be implied into a contract of employment, such that the right to payment of wages payable under an award gave rise to a private right to sue for damages for breach of the contract, and whether breach of the award gave rise to a claim for damages for a breach of statutory duty. It did not deal with the availability of a claim under s 82 of the TPA (and by analogy s 236 of the ACL) for loss and damage suffered because of misleading or deceptive conduct. Unlike the position in Josephson, Byrne and the other authorities on which Domino's relied, the question in the present case is not whether the FW Act operates to exclude rights to relief under the common law, such as for damages for breach of a contract of employment or damages for breach of a statutory obligation, but whether on its proper construction the FW Act operates to preclude rights to relief otherwise available under the TPA (and its successor the ACL).
66 The presumption in Pasmore is closely related to the principle that where a statute creates a new right or obligation without specifying the remedy or means of enforcement, the common law will supply one: Doe d Rochester (Bishop) v Bridges (1831) 1 B&Ad 847 at 859; 109 ER 1001 at 1006 (Lord Tenterden CJ for the Court). Josephson and Byrne refer to the principle in Pasmore in the factual context of those cases which concerned the availability of causes of action in contract or tort. It is reasonably arguable that those authorities do not mean that the applicant and group members' claim under the ACL is precluded by the FW Act.
67 Second, Domino's argument boils down to the proposition that it is not open to bring a claim for loss and damage under s 236 of the ACL where the claim is somehow factually referrable to an alleged entitlement to unpaid amounts due under an award. But the FW Act does not state that it operates as an exclusive code. It does not, in terms, set up a regime under which the only means by which a party can obtain redress for a loss which is measured by reference to the gap between wages due under an industrial instrument and the amount they were actually paid, is under the FW Act. Nor does the FW Act state in terms that a person cannot commence an action under the ACL, against a person other than his or her employer, for such loss and damage.
68 When Parliament passed the FW Act in 2009 it should be taken to have been aware of the existence of other causes of action under other statutory regimes, including under s 82 of the TPA for misleading or deceptive conduct in contravention of s 52 of that Act. I express this view cautiously as the parties' submissions did not address these principles, but in my view Domino's argument that the FW Act operates to preclude relief otherwise available under the TPA (and the ACL) engages the principles of statutory construction relating to implied repeal, derogation or alteration of an earlier statute.
69 In Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at [34] (Gleeson CJ, McHugh, Gummow , Kirby and Hayne JJ) the Court cited with approval Sarawati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 17 (Gaudron J) where her Honour said:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney General (Vict) (citation omitted).
70 At the time of enacting the FW Act this Court had jurisdiction for actions brought for compensation under s 82 of the TPA for loss and damage suffered by contravention of s 52, (which jurisdiction was maintained when analogous provisions were enacted in the ACL). A finding of inconsistency between the asserted code in ss 539 and 545 of the FW Act and the broad and remedial provisions in ss 52 and 82 of the TPA (at least in relation to claims of misleading and deceptive conduct where the loss is said to be related to underpayment of award entitlements), would lead to the implied repeal of the TPA provisions by necessary implication to the extent of the inconsistency: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7 (Griffiths CJ).
71 In the absence of express words there must be very strong grounds to support such an implication because there is a general presumption that the legislature intended that the provisions of both Acts should operate. The presumption that Parliament intended both statutes to operate is strong given that modern standards of parliamentary drafting are high: United States v Jennings [1983] 1 AC 624 at 643 (Lord Roskill, Lords Fraser, Scarman, Bridge and Brightman agreeing). In Shergold at [27] the Court said that it is to be expected that Parliament will clearly state its will "where the Parliament, by redefining the jurisdiction of a federal court, withdraws rights and liabilities from what otherwise would be the engagement of Ch III".
72 The principles relating to incompatibility of earlier statutes with later enactments were explained in Shergold by reference to Butler v Attorney-General (Victoria) [1961] HCA 32; (1961) 106 CLR 268. It is necessary to consider whether the provisions of the two statutes could "stand together" or "live together", or were in "direct conflict", or whether they were clearly and indisputably contradictory displaying such repugnancy that they could not be reconciled: Butler, Kitto J at 280, Taylor J at 285, Windeyer J at 290.
73 I do not consider the express words of the FW Act reveal a Parliamentary intention to somehow limit the operation of ss 52 and 82 of the ACL to the extent of any inconsistency or where there was relevant overlap. I consider it to be reasonably arguable that the fact that the relief available for a contravention of s 45 under ss 539 and 545 of the FW Act may in some circumstances overlap to an extent with relief available under ss 52 and 82 of the TPA does not result in a clear and indisputable contradiction between the provisions (and by analogy does not result in a contradiction between the FW Act and ss 18 and 236 of the ACL).
74 Third, in construing the proper interaction between the FW Act and the TPA (and with the ACL) it should be kept in mind that at the time of enactment of the FW Act the breadth of the protective and remedial function under ss 52 and 82 was well-recognised: see, for example, Marks v GIO Australia Holdings [1998] HCA 69; (1998) 196 CLR 494.
75 In Marks the High Court considered s 82 of the TPA, the then equivalent to s 236. Gummow J said the following (at [99]-[103]):
[99] The TP Act is a fundamental piece of remedial and protective legislation which gives effect to "matters of high public policy". It is to be construed so as "to give the fullest relief which the fair meaning of its language will allow".
[100] Section 82 applies across a spectrum of diverse legal norms created by Pts IV and V. A number of these will have no direct analogue in the general law. Given the objective of the legislation that is not surprising. However, it does emphasise the need for caution against treating a provision such as s 82 "as a mere supplement to or eking out of" pre-existing law. To the contrary, as Mason P put it, the court should not be "fearing to move far from the familiar coastline of traditional common law and equitable approaches".
[101] In Janssen-Cilag Pty Limited v Pfizer Pty Limited, Lockhart J said:
Section 82 is the vehicle for the recovery of loss or damage for multifarious forms of contravention of the provisions of Pts IV and V of the [TP] Act. It is important that rules laid down by the courts to govern entitlement to damages under s 82 are not unduly rigid, since the ambit of activities that may cause contravention of the diverse provisions of Pts IV and V is large and the circumstances in which damage therefrom may arise will vary considerably from case to case.
What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirement that damage can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision.
Also, a perusal of the provisions of Pts IV and V, the contravention of which gives rise to an entitlement to an applicant for compensation for loss or damage, points to the conclusion that applicants may claim compensation when the contravener's conduct caused other persons to act in a way that led to loss or damage to the applicant...
[102] These considerations, reflecting the apparent scope and purpose of the statute, militate against the presence of any legislative intention that before the court comes to assess the amount for which applicants are to be compensated under s 82 it first must identify any relevant general common law rules or analogies, understand the reasons that led to their development, and then seek to adapt or adopt them consistently with the scope and purpose of the legislation.
[103] As I have indicated earlier in these reasons, what was said by this Court in Gates (and Kizbeau Pty Ltd v W G & B Pty Ltd) does not determine that the measure of compensation which is recoverable in an action under s 82 is confined by analogies with tort or otherwise. The measure of damages recoverable in actions of a varied nature for which s 82 provides is not to be determined on the basis that the appropriate guide in most cases will be found by asking what would have been the measure if the common law did what it does not do, namely treat as a tort any facts which happen to give rise to an action under s 82. Analogy, like the rules of procedure, is a servant not a master.
(Citations omitted.)
76 The plurality in Marks (McHugh, Hayne and Callinan JJ) expressed similar views (at [38]) as follows:
It can be seen, therefore, that both ss 82 and 87 require examination of whether a person has suffered (or, in the case of s 87, is likely to suffer) loss or damage "by conduct of another person" that was engaged in the contravention of one of the identified provisions of the Act. That inquiry is one that seeks to identify a causal connection between the loss or damage that it is alleged has been or is likely to be suffered and the contravening conduct. But once that causal connection is established, there is nothing in s 82 or s 87 (or elsewhere in the Act) which suggests either that the amount that may be recovered under s 82(1), or that the orders that may be made under s 87, should be limited by drawing some analogy with the law of contract, tort or equitable remedies. Indeed, the very fact that ss 82 and 87 may be applied to widely differing contraventions of the Act, some of which can be seen as inviting analogies with torts such as deceit (eg, s 52) or with equity (eg, s 51AA) but others of which find no ready analogies in the common law or equity, shows that it is wrong to limit the apparently clear words of the Act by reference to one or other of these analogies.
77 It can be accepted, as Domino's contended, that those passages were concerned with the measurement of damages, not with identification of the injury or damage suffered. Even so, they indicate the breadth of the remedial function of s 82, and thus of s 236 of the ACL, across a spectrum of diverse legal norms, including the prohibition on misleading and deceptive conduct in s 18. If s 82 (and by analogy s 236) is construed "so as to give the fullest relief which the fair meaning of its language will allow" it is reasonably arguable that it permitted employees in the position of the applicant and group members to bring an action to recover loss and damage from a franchisor (Domino's) which is alleged to have made misleading or deceptive representations to their employers (the Franchise Operators), in reliance upon which the Franchise Operators did not pay them their entitlements under the applicable industrial instrument.
78 Fourth, the FW Act indicates that Parliament was aware of the existence of other causes of action and other regimes for recovery of compensation, and the reality that the operation of the different regimes may intersect and overlap. Pt 6-1, Div 3, is headed "Preventing multiple actions". Sections 725 and 732 in that Division are concerned with, among other matters, claims for unlawful termination of employment. Relevantly, they provide that where an application or complaint in relation to unfair dismissal has been made under another law of the Commonwealth or a law of a State or Territory, such as anti-discrimination legislation, the applicant is forced to elect between proceeding under the FW Act or under the other law. The FW Act made explicit provision when an election was required. There is no similar provision requiring a claimant to elect between proceeding under ss 539 and 545 for a contravention of s 45 of the FW Act or an action under the TPA.
79 It might be argued that Parliament did not include any express provision in the FW Act to:
(a) prohibit a person from obtaining redress under the TPA for a loss which is measured by reference to the gap between wages due under an industrial instrument and the amount they were actually paid; or
(b) require a person bringing a claim for losses referrable to the gap between wages due under an industrial instrument and the amount they were actually paid to elect between proceeding under the FW Act or the TPA,
because it did not foresee any intersection between the operation of the two Acts. In my view any such argument would not be a strong one given the broad protective and remedial purposes of ss 52 and 82 of the TPA.
80 Such an argument would also lack force because s 53B of the TPA (like its successor in s 31 of the ACL) expressly prohibited misleading or deceptive conduct in relation to aspects of employment. It provided:
Misleading conduct in relation to employment
A corporation shall not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.
At least insofar as offers of employment are concerned, in enacting the FW Act Parliament enacted legislation which permitted some overlap with the TPA in the broad sphere of protections for employees, and the FW Act does not expressly exclude the operation of s 52 or 53B of the TPA.
81 Fifth, and relatedly, when Parliament enacted the CCA (including the ACL) in 2010 it should be taken to have been aware of the existence of other causes of action under other statutory regimes, including under the FW Act. As I have said, there is a general presumption that Parliament intended the causes of action under the ACL to operate alongside the causes of action available under other statutory regimes.
82 Having regard to the text and context of ss 18 and 236 of the ACL and their broad remedial and protective purposes it is reasonably arguable that Parliament did not intend that their operation should be limited by the operation of ss 45, 539 and 545 of the FW Act.
83 It is relevant that where Parliament intended to narrow or limit the operation of the CCA or the ACL it did so expressly. For example, s 131A(1) of the CCA provides that, with the exception of the linked credit provisions, the ACL does not apply as a law of the Commonwealth in relation to the supply or possible supply of financial services or of financial products. Rather than ss 18 and 236 of the ACL applying to any misleading or deceptive conduct in relation to such supply, such conduct is regulated by ss 1041H and 1041I of the Corporations Act 2001 (Cth) and ss 12DA and 12GF of the Australian Securities and Investments Commission Act 2001 (Cth). Similarly, s 137C(1) of the CCA expressly provides that a claim for damages cannot be brought under s 236 of the ACL where the conduct constitutes a contravention of Part 2-1 (s 18) or Part 3-1 and the loss or damage is, or results from, death or personal injury. Yet nothing in the CCA or the ACL expressly states that to the extent that the relationship between employer and employee and the rates of pay and terms and conditions of employment of employees is governed by the FW Act, the protections provided by the ACL do not apply.
84 Sixth, it is significant that the proceeding seeks a declaration that Domino's conduct contravened s 18 of the ACL. That claim does not depend upon the applicant establishing that he has suffered loss or damage nor does it require the applicant to prove a contravention of s 45 of the FW Act.
85 Domino's argued that the applicant and group members are precluded "in absolute terms" from bringing an application for declaratory relief under the ACL, but it is not plain or obvious why that is so. Domino's sought to rely on the reasoning in Josephson, Byrne and Gordonstone to argue that the general power in s 21 of the FCA to make binding declarations of right is not a source of power to make a declaration of contravention of s 18 of the ACL in relation to an alleged contravention of an award made under the FW Act. That submission, however, omitted reference to s 564 of the FW Act which provides:
To avoid doubt, nothing in this Act limits the Federal Court's powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.
86 The Explanatory Memorandum for the Fair Work Bill 2008 (EM) said in respect of s 564 (see: paragraph 2213 of the EM) that it:
…is intended to address authorities which have held that federal industrial laws exhaustively contain the remedies available to enforce those laws. The Federal Court will, for example, be able to make declarations relating to the meaning of industrial instruments made under the Bill. It will also be able to grant injunctions (including interim or interlocutory injunctions) in matters arising under the Bill, even where not granted under Part 4-1 (Civil remedies).
87 Section 564 and the EM were not the subject of submissions but, keeping that caution in mind, it seems likely that in enacting the provision Parliament was referring to authorities such as Josephson, Byrne and Gordonstone. Parliament has expressly provided that the Court's power under the FCA to grant declaratory relief is not limited by the FW Act.
88 In Shergold at [34] the Court said "that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably.": see also Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [32] (Gleeson CJ), [72] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Pt Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1 at [29] (French CJ, Kiefel (as her Honour then was), Bell, Gageler and Gordon JJ). In enacting s 564 of the FW Act, Parliament turned its attention to the question of the Court's jurisdiction under s 21of the FCA and expressly said that the FW Act does not limit the Court's power to grant declaratory relief.
89 The present case involves novel and debatable questions as to the proper interaction between the causes of action and relief available under the FW Act and those that are, or at least may be, available under the ACL. There is a reasonable basis to argue that the FW Act does not operate as an exclusive code such that it is not open to the applicant and group members to make a claim for loss and damage under s 236 of the ACL suffered because of misleading or deceptive conduct in contravention of s 18. I am therefore not persuaded that the pleading does not disclose a reasonable cause of action. It is also relevant that the case involves claims of loss and damage suffered by a large number of group members, which claims are likely to be substantial in aggregate: Allstate Life factor (4). In such circumstances it would not be appropriate to strike out the claim under s 236.