The issue for determination in the proceeding was whether s 545(1) of the Fair Work Act 2009 (Cth), which relevantly provides that a Court may make appropriate orders if satisfied that a person has contravened a civil remedy provision, empowered the Federal Court to make an order that person B be prohibited from paying the penalty imposed on a person who was found by the court to have contravened a civil remedy provision. A substantial portion of the argument was directed to the meaning of the word “appropriate” in the statutory context.
In separate judgments, the Court concluded that s 545(1) did not provide any power to make penal orders or to support or enhance the effect of a pecuniary penalty order. However, a majority of the Court (Gageler J dissenting) concluded that such a power was implicit in s 546, which relevantly provides that the Court may order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that a person has contravened a civil remedy provision.
