Types of order made by the Court

The Federal Court or the Federal Circuit and Family 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 (such as section 352, which prohibits an employee being dismissed because of a temporary absence from work due to illness or injury).

Orders the Federal Court or Federal Circuit and Family Court may make include the following:

• an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention
• an order awarding compensation for loss that a person has suffered because of the contravention (which can include interest), or
• an order for reinstatement of a person.

Pecuniary penalty orders

The Federal Court or the Federal Circuit and Family Court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

The pecuniary penalty for an individual must not be more than the maximum penalty for the relevant contravention set out in section 539 of the Fair Work Act.

In the case of a body corporate, the maximum penalty is five times the maximum for an individual.

A penalty unit is used to define the amount payable for pecuniary penalties.

The maximum number of penalty units for contravening section 352 of the Fair Work Act (which prohibits an employee being dismissed because of a temporary absence from work due to illness or injury) is 60 penalty units.

From 1 July 2023 a penalty unit was $313.[1]

• for an individual – 60 penalty units = $18,780
• for a body corporate – 5 x 60 penalty units = $93,900

The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

• the Commonwealth
• a particular organisation (such as a union), or
• a particular person.

Costs orders by the Court

A party to proceedings (including an appeal) in a court in relation to a matter arising under the Fair Work Act may be ordered by the court to pay costs incurred by another party to the proceedings.

The party may be ordered to pay the costs only if the court is satisfied that:

• the party instituted the proceedings vexatiously or without reasonable cause
• the party’s unreasonable act or omission caused the other party to incur the costs, or
• the party unreasonably refused to participate in a matter before the Fair Work Commission, and the matter arose from the same facts as the proceedings.

References

[1] Crimes Act 1914 (Cth) s.4AA and Crimes (Amount of Penalty Unit) Instrument 2023.