B THE PRINCIPLED APPROACH TO THE REMEDIAL CLAIM
12 The power of the Court to make non-penal remedial orders arises under s 545(1) of the FW Act, which includes an order for statutory compensation as specified in s 545(2)(b). Section 545 appears, relevantly, as follows:
545 Orders that can be made by particular courts
…
(1) The Federal 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.
…
(2) Without limiting subsection (1), orders the Federal 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.
13 As can be seen from its terms and its statutory context, s 545(1) confers a wide remedial power on the Court to make any order that it considers appropriate, if it is satisfied that a person has contravened, or proposed to contravene, a civil remedy provision, and s 545(2) provides a non-exhaustive list of examples as to the types of remedial orders that may be made, including statutory compensation as specified in s 545(2)(b). As indicated by the use of the word "may", the power to make any remedial order under the section involves a discretion: see s 33(2A) of the Acts Interpretation Act 1901 (Cth).
14 Authorities in the industrial area have developed an approach to compensatory orders which, given the purposes of the statute, provides some guidance as to the way in which that discretion is to be exercised. Although the discretion to make remedial orders is broad, it is not without limits. In this respect, it is useful to reproduce the observations of Keane, Nettle and Gordon JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 (at 190-191 [103]-[106], with whom Gageler J agreed at 174-175 [51]), in which their Honours dealt with the breadth of the section in the context of explaining that the power does not include a power to make penal orders:
The correct construction of s 545(1)
(i) Preventative, remedial and compensatory orders
103. As Jessup J observed in the Full Court, it assists in the construction of s 545(1) to have regard to its legislative history. But the starting point of the process must be the text of s 545(1) read in the context of the Fair Work Act as a whole and, in particular, in light of s 546. So approached, the first and most immediate point of significance is the breadth of the terms in which s 545(1) empowers the court to make any order the court considers appropriate. What is "appropriate" for the purpose of s 545(1) falls to be determined in light of the purpose of the section and is not to be artificially limited. As the ABCC submitted, such broad terms of empowerment are constrained only by limitations that are strictly required by the language and purpose of the section. To adopt and adapt the language of Flick J in Transport Workers' Union of Australia (NSW Branch) v No Fuss Liquid Waste Pty Ltd [[2011] FCA 982 at [41]], the object and purpose of the power under s 545(1) is quite separate and distinct from that of the power under s 546 to order that a contravener pay a pecuniary penalty.
104. The second point of significance is contextual, and it points the other way. It will be observed that all of the example orders listed in s 545(2) are directed to preventing the occurrence of an apprehended contravention, remedying the effects of a committed contravention or compensating victims of a contravention for the consequences of the contravention. None of the example orders is penal. That suggests that the types of orders that may be regarded as "appropriate" within the meaning of s 545(1) are limited to preventative, remedial or compensatory orders, or at least do not include penal orders.
105. The third point dovetails with the second. As was earlier set out, the chapeau to s 545(2) expressly provides that the sub-section does not limit s 545(1). Standing alone, that could be taken to mean that s 545(2) does not in any way limit the scope of s 545(1). If so, it would permit of the possibility that s 545(1) extends to "appropriate" penal orders, notwithstanding that the example orders in s 545(2) are not penal. But, read in the context of s 545 as a whole, and particularly in light of the absence from s 545 of any explicit or apparently implicit suggestion of a penal purpose, the stipulation that s 545(2) does not limit s 545(1) presents as more likely to mean that the preventative, remedial and compensatory orders instanced in s 545(2) do not limit the range of preventative, remedial and compensatory orders open to be made under s 545(1).
106. The fourth point is also contextual and it augments the third. Critically, the only form of penal order to which the Fair Work Act specifically refers is a pecuniary penalty order; and s 546 is the only provision of the Fair Work Act that expressly provides for the imposition of pecuniary penalty orders. That strongly implies that s 546 is the sole repository of the power to make penal orders and, in turn, that provides powerful support for the conclusion that orders appropriately made under s 545(1) are limited to preventative, remedial and compensatory orders.
(Emphasis added, citations omitted).
15 Hence, s 545(1) should not be limited artificially; the preventative, remedial and compensatory orders instanced in s 545(2) do not limit the range of preventative, remedial and compensatory orders open to be made. Consistently with this, Mortimer J in Dafallah v Fair Work Commission [2014] FCA 328; (2014) 225 FCR 559 (at 595 [148]-[149]) referred to the width of the power as follows:
148. The language of s 545 is broad, allowing the Court to provide remedies which meet the circumstances of any given contravention, taking into account the range of parties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, or to ensure it does not occur again. Awarding compensation for loss is but one example and may not be appropriate, depending on what other action has been taken in respect of any losses. Each case will turn on its facts in that sense.
149. Fixing compensation under s 545 is a statutory task, and the Court must not substitute that task with approaches derived from the general law: Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 at [44]; Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [94] per French and Jacobson JJ.
16 Her Honour went on to say (at 596 [157], [159]):
157. Further, the width of the power conferred by s 545(1) also allows for compensation which may not fully compensate a person for the loss suffered: see Gama at [94] per French and Jacobson JJ, where their Honours were considering similar statutory compensation provisions under s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). In my opinion, that approach is available under s 545(1) because, as their Honours pointed out in Gama at [94], an award of compensation is discretionary. In s 545(1), the governing consideration is what the Court considers "appropriate", and this in my opinion leaves room for a Court to find in a given case that less than full compensation might be appropriate.
…
159. One of the principal tasks, if compensation is to be awarded, is to ensure that there is the appropriate causal connection between the contravention and the loss claimed: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [423] per Barker J.
17 Her Honour's observation (at 596 [157]) that s 545 "allows for compensation which may not fully compensate a person for the loss suffered" was considered by Logan J in Retail and Fast Food Workers Union Inc v Tantex Holdings Pty Ltd [2020] FCA 1258; (2020) 299 IR 56, where his Honour observed (at 97-98 [162]-[163]):
162. … It would be unwise, especially in an industrial relations context, to be further prescriptive, only to observe that, if a loss were proved to have been caused by a particular contravention, it is difficult to see how it would be "appropriate" not to award compensation for that loss.
163. But a causally connected loss must be proved. …
(Emphasis added).
18 There might be danger in abstract discussion as to if and when it might be "appropriate" to decline to make a s 545 remedial order, including an order for statutory compensation. There are many areas of the law where the grant of relief is discretionary: prerogative relief and equitable remedies are two obvious examples. Like in these other areas, the relevant considerations informing the discretion in an individual case are not confined, and are best identified and considered by reference to the facts of individual cases where relief is sought. Having said this, I accept that 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". This does not mean, in my view, that once a loss is proved as having been caused by a contravention, compensation for that loss must follow, as if axiomatically. Justice Logan's observation that it would be "difficult to see how it would be 'appropriate' not to award compensation for" causally connected loss was linked with his Honour's view that the Court should not be "further prescriptive" in directing how the discretion in s 545(1) should be exercised. It is potentially distracting for me to postulate situations where it may be appropriate to award no or less than full compensation for causally attributed loss - it all depends on the circumstances. It suffices to observe that the principled position, in my view, is as was explained by Mortimer J in Dafallah, as well as by Ross J in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 (at [132], with whom Rangiah J agreed at [158]):
132. Further, as is clear from s 545(2)(b) a necessary condition for the making of an Order for compensation is that loss is suffered because of the contravention. As Barker J put it in Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 at [423] (the Australian Aircraft Case), "this requires an appropriate causal connection between the contravention and the loss claimed". (Also see Maritime Union of Australia v Fair Work Ombudsman and Skilled Offshore (Australia) Pty Ltd [2015] FCAFC 120 at [20]). It necessarily follows that any order for compensation is an order directed to compensating a person for such a loss. As Katzmann J observed in Shizas v Commissioner of Police ([2017] FCA 61 at [209]) the focus of such an order is "in a loose sense, the restoration of those affected by a contravention to the positions they would have occupied but for its occurrence".
19 Their Honours rejected an argument advanced by the Fair Work Ombudsman in that case that the position of the entity suffering loss need not be considered and the subject of evidence, and observed (at [135]-[141]):
135. … [T]he discretion conferred by s 545(1) is relatively unconfined, in the sense that the latitude as to the choice of the decision to be made is considerable: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19] per Gleeson CJ, Gaudron and Hayne J.
136. Section 545 contains no positive indication of the considerations upon which the Court is to determine whether a compensation order is to be made. Consistent with principle, the power is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. But, subject to such considerations the discretion conferred is unconfined except insofar as "the subject matter and the scope and purpose" of the legislation may enable an appellate Court to pronounce the reasons given by the primary Judge to be "definitely extraneous to any objects the legislature could have in view": Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ.
…
139. Plainly, the matters to be considered in relation to s 545 must bear some relationship to the power being exercised. But I see no warrant in the subject matter and scope of the provision and purpose of the Act which would preclude the Court from considering a range of contextual matters, including the conduct of the person who suffered the loss and whether that person's position with respect to compensation is known, and if so, what that position is. Such considerations may well be relevant and accorded weight depending on the circumstances of the case.
20 As can be seen, a necessary condition for the making of a s 545 order for compensation is that loss is suffered because of the contravention. But what do these words - which are the only words pointing to the nature of connexion required - actually require in order for the relevant loss to be recoverable?
21 Here one obtains some guidance about how causation is usually approached in the context of statutory compensation; although, it is important to recognise the limitations of any such analogies. The text and context of these provisions allowing recovery of statutory compensation may differ, sometimes markedly. The scope and purpose of particular provisions can inform the approach taken to causation in different contexts. Some differences between statutory compensation provisions are fundamental and reflect the difference between a right to obtain compensation on application and a discretion being conferred on a court to award a compensatory remedy on application. This is reflected in the difference, for example, between the old ss 82 and 87 of the Trade Practices Act 1974 (Cth).
22 Moreover there are textual differences. Some provisions have different words of causation. For example, s 1325 of the Corporations Act 2001 (Cth) allows for recovery of losses alleged to have been suffered "because of" a contravention; however, s 1317HA of the same Act (and which could apply in the context of the same contravention) allows for recovery of loss which is alleged to have "resulted from" a contravention - this must be read as "resulted directly or indirectly" due to the combination of the definition of "result" in s 9 of the Corporations Act and s 18A of the Acts Interpretation Act 1901 (Cth): see BHP Group Limited v Impiombato [2021] FCAFC 93; (2021) 151 ASCR 634 (at 657 [102] per Middleton, McKerracher and Lee JJ). Another example of an important difference as to the scope of attribution of legal responsibility for losses which could be said to be causally related, as a matter of fact, is that as a result of legislative reform, most jurisdictions have introduced proportionate liability in respect of non-personal injury claims for economic loss or property damage, or claims for misleading or deceptive conduct brought pursuant to state or territory fair trading legislation. In such cases, each wrongdoer will only be liable to the extent of their responsibility.
23 What is required is to have regard to the text, context and statutory purpose of the relevant provision. The questions that seem to be relevant in the present case are first, whether a loss has been proved; and secondly, whether as a matter of history or fact, the proved contraventions did have a role in the happening of the loss. It is necessary then to examine the role that is identified by reference to the purpose of the inquiry; that is, the attribution of legal responsibility. It is at this third level of inquiry, in determining whether the order for statutory compensation is "appropriate", that it may be necessary to ask whether, for some reason, the contravener should nevertheless be held not liable. In this context, it seems to me to be necessary to identify the nature of the role which the contravention played in bringing about the loss suffered.
24 Like in other statutory compensation contexts, whether the proved contraventions did have a role in the happening of the loss is not to be diverted by some misguided search of some form of "sole" cause. I made a number of observations as to why this is so, and as to causation generally in the Report Judgment (at 290-293 [29]-[37]). It is unnecessary to repeat that analysis here other than to highlight a point of some significance by adapting what was said, albeit in a different context, by Gaudron, Gummow and Hayne JJ in I & L Securities Pty Limited v HTW Valuers [2002] HCA 41; (2002) 210 CLR 109 (at 127-128 [55]-[56]).
25 If there is a contravention of the FW Act and, following that contravention, a person suffers loss or damage, it may be possible to identify several features of the history of events as having contributed to the person suffering loss. To search for the single cause of an event is, therefore, to pursue an illusion. Furthermore, much more often than not, to speak of the "effective cause" (or to use some similar expression) is to hide important assumptions that are made, or conclusions that are reached, about the attribution of responsibility for particular kinds of act or omission. That is why it is necessary to understand the purpose for making some inquiry about causation. Only when the purpose of the inquiry is known, is it possible to identify and articulate how and why some circumstances are extracted "out of the whole complex of antecedent conditions of an event" and identified by the law as a cause of it.
26 The purpose here is clear: as part of the statutory objective of providing a "balanced framework for cooperative and productive workplace relations" s 545 orders, including the examples listed in s 545(2), are directed to preventing the occurrence of an apprehended contravention, remedying the effects of a committed contravention or compensating victims of a contravention for the consequences of the contravention. If loss is suffered because of a contravention, if appropriate, an order can be made to remedy that result.
27 As I have explained above, the connexion may be satisfied if the contravening conduct is "a cause": see, e.g., Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 (at 469 [14]-[15] per Gleeson CJ; at 490 [97] per McHugh J; and at 509 [163]-[164] per Hayne J). However, when one comes to the attribution of legal responsibility, this is not the end of the matter. In the context of some types of statutory compensation, beyond the "not negligible" threshold, the strength of the requisite connexion is immaterial: see, e.g., Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853; (2004) ATPR 42-014 (at [195] per Kiefel J). Yet, this does not mean in the present context, that an order for recovery of a non-negligible but indirect loss would be appropriate.
28 Other factors that have contributed to a loss are beside the point unless they point to the loss not being causally related or the proposed compensatory order being other than "appropriate". This can mean, as I concluded in the Report Judgment, that the contraventions were "a cause" of the loss claimed: RJ at 293 [37]. Although a number of cases have invoked the notion of "mitigation" or whether the claimant acted "reasonably" in incurring an alleged loss, this is perhaps better seen as being part of the broader causation inquiry and then, the evaluation as to whether, in the exercise of the Court's discretion, an order for compensation claimed is "appropriate".
29 It should be stressed that in this case some parts of the discussion above is academic, as the present forensic battleground was whether loss had been proved, and there was no pleading or developed arguments made on behalf of the Union identifying specific discretionary consideration as to why loss, if otherwise proved, should not be awarded on specified discretionary grounds or on the basis of some articulated argument that an award of proven loss should not be made, because it would not be appropriate in the sense explained above.