Transport Workers' Union of Australia v Qantas Airways Limited (Penalty) - [2025] FCA 971

FEDERAL COURT OF AUSTRALIA
Transport Workers’ Union of Australia v Qantas Airways Limited (Penalty) [2025] FCA 971

File number: NSD 1309 of 2020

Judgment of: LEE J

Date of judgment: 18 August 2025

Catchwords: INDUSTRIAL LAW – where Qantas was previously found to have engaged in the largest ever contravention of the general protections provisions of Pt 3–1 of the Fair Work Act 2009 (Cth) – where the issue of pecuniary penalty fell to be determined – consideration of culture within Qantas where evidence of contrition is not persuasive and as to reform is mixed – the applicable law and principles governing the imposition of a pecuniary penalty considered – where the relevant considerations in determining the pecuniary penalty identified – where findings made as to each of the relevant considerations – where the quantum of the penalty determined in the amount of $90,000,000 – where the proper recipient to whom the penalty should be paid in whole or in part considered – orders made

Legislation:
Acts Interpretation Act 1901 (Cth) s 33(2A)

Competition and Consumer Act 2010 (Cth) ss 18(1), 29(1)(b), 29(1)(g), 34

Conciliation and Arbitration Act 1904 (Cth)

Evidence Act 1995 (Cth) ss 140(2), 191

Fair Work Act 2009 (Cth) Pts 3–1, 4, 5–2, ss 12, 173(2), 280, 236, 340, 340(1), 340(1)(a)(ii), 340(1)(b), 341, 346, 525(2)(b), 539(1), 539(2), 545, 545(1), 545(2)(b), 545(4), 546, 546(1), 546(2), 546(3), 570

Fair Work (Registered Organisations) Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 23, 33V, 54A

Explanatory Memorandum, Fair Work Bill 2008 (Cth)

Work Health and Safety Act 2011 (NSW) s 104(1)

Cases cited:
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Australian Competition and Consumer Commission v Delta (No 2) [2024] FCA 580
Australian Competition and Consumer Commission v Qantas Airways Limited [2024] FCA 1219
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25
Australian Licenced Aircraft Engineers Association v Qantas Airways Limited (No 2) [2013] FCCA 1696
Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [2012] FMCA 711
Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231; (2000) 101 IR 143
Australian Salaried Medical Officers’ Federation v Peninsula Health (No 3) [2024] FCA 1255
Australian Securities and Investments Commission v GetSwift Limited (Penalty Hearing) [2023] FCA 100; (2023) 167 ACSR 178
Australian Securities and Investments Commission v Richards [2013] FCAFC 89
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Carnie v Esanda Finance Corporation Ltd [1995] HCA 9;(1995) 182 CLR 398
Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2023] FCA 104
Commissioner of Taxation v Bogiatto (No 2) [2021] FCA 98
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austral Ships Pty Ltd (No 2) [2024] FCA 803
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd (No 2) [2024] FCA 803
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz Pty Ltd (No 2) [2020] FCA 1073
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Alleged Services Union of Australia v Kentz Pty Ltd (No 2) [2020] FCA 1073
Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228
Construction, Forestry Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032
Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40; (2023) 297 FCR 438
Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority [2024] FCA 848; (2024) 333 IR 377
Construction, Forestry, Maritime, Mining and Energy Union v Qube Ports Pty Ltd [2025] FCA 208
Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992
Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 3) [2018] FCA 1395
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032
Construction, Forestry, Mining and Energy Union v Melbourne Precast Nominees Pty Ltd (No 3) [2020] FCA 1309
Elliott-Carde v McDonald's Australia Limited (Stay Application) [2023] FCA 1210; (2023) 301 FCR 84
Elliott-Carde v McDonald's Australia Limited [2023] FCAFC 162; (2023) 301 FCR 1
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Gill v Ethicon Sàrl (No 10) [2023] FCA 228
Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232
Han v St Basil’s Homes (No 2) [2025] FCA 448
I & L Securities Pty Limited v HTW Valuers [2002] HCA 41; (2002) 210 CLR 109
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90
Koufos v C Czarnikow Ltd (The Heron II) [1967] 3 WLR 1491; [1969] 1 AC 350
Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw- Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379
Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289
Municipal Officers Association of Australia v City of Bayswater (1987) 22 IR 45
Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146; (2013) 221 FCR 118
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Owners of Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404
P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029
Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union(No 3) [2021] FCA 348; (2021) 304 IR 280
Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2022) 282 FCR 580
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357
Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34
Qantas Airways Ltd v Transport Workers’ Union of Australia [2023] HCA 27; (2023) 278 CLR 571
Ramsay v Menso [2019] FCA 1273
Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306
Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236
SafeWork NSW v Qantas Ground Services (No 4) [2024] NSWDC 53
Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; (2016) 239 FCR 336
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338
Tasfast Air Freight Pty Ltd v Mobil Oil Australia Ltd [2002] VSC 457
The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482
Todorovic v Waller (1981) 150 CLR 402
Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076
Transport Workers’ Union of Australia v Qantas Airways Ltd (No 2) [2021] FCA 1012; (2021) 308 IR 333
Transport Workers’ Union of Australia v Qantas Airways Ltd (No 4) [2021] FCA 1602; (2021) 398 ALR 124
Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244
Transport Workers’ Union of Australia v Qantas Airways Ltd [2024] FCA 1216; (2024) 334 IR 187
Transport Workers’ Union of Australia v Qantas Airways Limited (Order to Recall Witnesses) [2024] FCA 572
Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949; (2011) 220 FCR 551

Australian Law Reform Commission, Proceedings and Third-Party Litigation Funders (Report 134, December 2018)

Class Actions Practice Note (GPN-CA)

Wright D, ‘Discretion and Common Law Remedies’ (2002) 23 Adelaide Law Review 243

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 328

Date of hearing: 19–21 May 2025

Counsel for the applicant: Mr N Hutley SC with Mr P Boncardo

Solicitor for the applicant: Maurice Blackburn

Counsel for the respondent: Mr J Gleeson SC with Mr R Dalton KC and Ms M Caristo

Solicitor for the respondent: Herbert Smith Freehills Kramer

ORDERS

NSD 1309 of 2020

BETWEEN:
TRANSPORT WORKERS’ UNION OF AUSTRALIA

Applicant

AND:
QANTAS AIRWAYS LIMITED ACN 009 661 901

First Respondent

QANTAS GROUND SERVICES PTY LTD

Second Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

18 AUGUST 2025

THE COURT ORDERS THAT:
1.Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), the first respondent, Qantas Airways Limited, pay a pecuniary penalty in the amount of $90,000,000 (Penalty).
2.Pursuant to s 546(3) of the Fair Work Act 2009 (Cth), part of the Penalty, being the sum of $50,000,000, be paid by Qantas Airways Limited to the applicant, the Transport Workers’ Union of Australia.
3.The proceeding be adjourned part-heard to a date to be fixed for the making of a further order or orders pursuant to s 546(3) of the Fair Work Act 2009 (Cth) in relation to part of the Penalty (being the $40,000,000 balance of the Penalty).
4.The proceeding be listed for a case management hearing on a date to be fixed.
5.Liberty to apply to the applicant, in default of payment pursuant to order 2.

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

REASONS FOR JUDGMENT
LEE J:
A INTRODUCTION

These reasons explain the imposition of a pecuniary penalty on Qantas Airways Limited (Qantas) for what the applicant, the Transport Workers’ Union of Australia (Union), describes as the largest and most significant contravention of the general protections provisions of Pt 3–1 of the Fair Work Act 2009 (Cth) (FWA) (and, for that matter, any of the predecessor provisions to Pt 3–1, which have been a feature of Australian industrial law for over 120 years).
The Union submits the Court should order Qantas to pay the agreed maximum penalty in the sum of $121,212,000 or close to it (and that the whole, or a substantial portion, of this penalty should be paid to the Union). Qantas now accepts a “substantial” penalty should be imposed but says the case “has already been a wakeup call for corporate Australia – on what the law is; on how the issues in such cases should be considered in advance, and how litigation should be prepared for and run” and that to inflict the maximum penalty or close to it would be oppressive as it would not give adequate weight to various factors which place Qantas’ overall conduct in a proper light and would lack any reasonable relation to the statutory maximum.
The background and circumstances that gave rise to the contravening conduct were set out comprehensively in Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 (LJ) and Transport Workers’ Union of Australia v Qantas Airways Ltd [2024] FCA 1216; (2024) 334 IR 187 (CJ).
It is unnecessary to set out this detail again except as canvassed below. In short, and by way of introduction, I found that in November 2020, the Chief Executive Officer (CEO) of Qantas Domestic and International, Mr Andrew David, decided, during the COVID-19 pandemic, to “outsource” Qantas’ ground handling operations work at ten Australian airports to several third-party ground handling companies (outsourcing decision). Before the outsourcing decision, the ground handling operations had been undertaken by employees of Qantas and its subsidiary Qantas Ground Services Pty Ltd (QGS), many of whom were members of the Union. It was common ground that for the purposes of the imposition of penalty, nothing turns on any distinction between Qantas and QGS.
The implementation of the outsourcing decision meant that the vast majority of the Qantas-employed ground handlers were sacked. The Union challenged the outsourcing decision and in July 2021, I delivered the LJ, determining that the outsourcing decision was “adverse action” against Qantas employees in contravention of the FWA, which (pursuant to s 340) provides that a person must not take adverse action against another person to prevent the exercise of a workplace right by the other person. Here, the relevant “workplace right” (as that term is defined under s 341 of the FWA) was the ability for the employees to organise and engage in protected industrial action and participate in bargaining in 2021 (prohibited reason).
Declaratory relief was granted in August 2021 in Transport Workers’ Union of Australia v Qantas Airways Ltd (No 2) [2021] FCA 1012; (2021) 308 IR 333 (DJ). The Union then sought general reinstatement under s 545 of the FWA and, in October 2021, I ordered that the general reinstatement claim be determined separately. Just before Christmas 2021, at the conclusion of argument, I dismissed the Union’s claim seeking this relief: Transport Workers’ Union of Australia v Qantas Airways Ltd (No 4) [2021] FCA 1602; (2021) 398 ALR 124 (RJ). The declaration and orders reflecting my findings in relation to liability, and the dismissal of the reinstatement application were appealed to the Full Court, but the appeal and cross-appeal were dismissed: Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34.
After the proceeding had returned to deal with remaining questions, it was adjourned, pending the determination of a High Court appeal. This appeal was also dismissed: Qantas Airways Ltd v Transport Workers’ Union of Australia [2023] HCA 27; (2023) 278 CLR 571.
The Union had sought orders under ss 545(1) and 525(2)(b) of the FWA by way of compensation for economic and non-economic loss of the 1,820 affected workers (affected workers). The claims for compensation made in the proceeding were referred to mediation in September 2023.
This mediation failed and the Court was then called upon to determine what, if any, loss suffered by each of three so-called “test case” individuals had been established and whether orders providing for statutory compensation for the test case individuals ought to be made. This involved consideration of what would have occurred in the event the contravening conduct had not happened. I found on the evidence before me at that hearing, that the most likely counterfactual, was that absent the contravening conduct, Qantas would have made an outsourcing decision in late 2021. It followed that it was appropriate in the cases before the Court to calculate compensation on the basis that the outsourcing would have occurred twelve months after each of the test case individuals ceased employment and hence the employees lost an opportunity of retaining their employment for that period.
In the CJ (at 192–3 [14]–[15]) I lamented that the remaining parts of the dispute had not been advanced as a Pt IVA (of the Federal Court of Australia Act 1976 (Cth) (FCA Act)) proceeding bringing with it the procedural benefits embedded in the modern class action regime. It was said at the penalty hearing that this created a difficulty because the cause of action “had merged in the judgment” (T79.46); but this was not really a difficulty. With leave, there would have been no issue with the Union pursuing the compensation in another proceeding and discontinuing the compensatory claims in this proceeding. After the dismissal of the High Court appeal, and prior to the compensation hearing, there would have been no fetter on a representative proceeding being commenced with the Union as the representative applicant. If commenced to secure the benefits of the class action procedure, a duplicative proceeding would not constitute an abuse of process and all parties, most relevantly Qantas, would have been bound by the factual and legal findings I made in the LJ and the RJ. It appears that drawn by currents not visible to the eyes of many plaintiff lawyers, those acting for industrial organisations seem unenthusiastic about embracing the manifold benefits of Pt IVA.
As it happened, I noted the Union relied on there being an “outbreak of cooperation between the parties” in extrapolating my findings in the CJ to the broader cohort: CJ (at 193 [16]). Hoping that a settlement might avoid these legal difficulties, in November 2024, and following the delivery of the CJ, I ordered (among other things) that: (a) any outstanding issues concerning the amount of statutory compensation payable to each of the test case individuals; (b) the appropriate mechanism for, and the making of orders to facilitate, the determination of statutory compensation payable to the remaining affected workers; and (c) the fixing of a date for, and any interlocutory orders regarding, the hearing of any claim for statutory compensation payable to the Union, be referred to a second mediation.
The evidence at this hearing establishes that on 17 December 2024, the parties entered “an agreement in principle for the settlement of the [Union]’s claim against Qantas seeking compensation” and that pursuant to the agreement, Qantas is to pay $120 million into a so-called “Settlement Distribution Fund” to be managed by the Union’s solicitors in its capacity as administrator of that fund: see Ex A (at 4). The moneys in the fund are to be paid out to: (a) affected workers based on what is said to be “a fair and reasonable assessment of the economic and non-economic loss” suffered by the affected workers as a result of the outsourcing decision (other than the “test case individuals”, whose claims for compensation in the total amount of $394,740.25 were resolved by orders of the Court); and (b) the Union, in the amount of $165,000, as compensation for the Union’s loss of membership fees. Legal costs associated with the administration of the fund will be deducted from interest accrued on the fund.
Unlike in a class action, the Court has no transparency concerning, nor control over, the quantum of the legal and administration costs. The Court could not explore the possibility of administering and distributing the funds by an alternative method which, depending upon the circumstances, could conceivably increase the amount available to be distributed to the affected workers. This goes against the grain of recent developments in closely controlling the legal and administration costs incurred on behalf of represented persons in the analogous context of class actions. As I said in Gill v Ethicon Sàrl (No 10) [2023] FCA 228 (at [10]–[11]) “the assumption that solicitors for applicants in proceedings … should become scheme administrators by default is a notion which needs to be exploded: Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw- Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 (at [52]–[54])”. Indeed, these concerns were picked up in Recommendation 9 of the Australian Law Reform Commission’s (ALRC) report Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders (Report 134, December 2018) (at [5.35]–[5.39]) where the ALRC recommended that Pt 15 of the Class Actions Practice Note (GPN-CA) include a clause that the Court may tender settlement administration, and include processes that the Court may adopt when tendering settlement administration.

Perhaps unsurprisingly given the history and nature of this proceeding, there is no evidence the Union sought competitive tenders to minimise the costs of administration – and it was suggested at the current hearing I should be satisfied, albeit in the absence of any detailed evidence, that the amount of the fund set aside was sufficient to provide “as full a compensation as the law would allow” (T45.27–28) for all the affected workers.
My present uncertainty as to the final amount to be distributed and how it is to be calculated, brings into focus a broader point. Given that the Union has proceeded to “settle” the claims of non-parties without the protections afforded by Pt IVA, the Court was unable to undertake and discharge what has been described as the onerous duty to determine whether the settlement was fair, reasonable and in the interests of those represented. This duty in protecting the rights of represented persons is so important that it has been described as a role akin to that of a guardian, not unlike the role a court assumes when approving infant compromises: P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029 (at [23] per Finkelstein J); Tasfast Air Freight Pty Ltd v Mobil Oil Australia Ltd [2002] VSC 457 (at [4] per Bongiorno J); Carnie v Esanda Finance Corporation Ltd [1995] HCA 9;(1995) 182 CLR 398 (at 408 per Brennan J); Australian Securities and Investments Commission v Richards [2013] FCAFC 89 (at [8] per Jacobson, Middleton and Gordon JJ).
No Court approved notices have been sent to those affected. I have no idea as to what they have been told about their rights. I have no evidence as to how “representative” or statistically meaningful the test cases were, or whether affected workers may disagree with the extrapolation of any findings I made in the CJ to their personal circumstances (bearing in mind that those findings are not, as a matter of statute, binding upon the balance of the affected workers leaving aside any, at present, unarticulated argument: (a) based upon equitable principles; (b) notions of abuse of process; or (c) as to how the settlement would impact upon the proper exercise of the discretion to order any compensation sought by an affected worker who wished to obtain additional amounts over and above any sum distributed pursuant to the settlement agreement).
Further, leaving aside any individual issues, no analysis was provided to me at this hearing as to how the total settlement sum was calculated.
It would be naïve to assume there is something akin to an efficient market in the settlement of litigation. What I do know is that the Union has, by this case, advanced the interests of the affected workers with skill and diligence, and I am also aware the amount ultimately paid by Qantas was satisfactory to the Union.
I will proceed on the basis that Qantas has done all asked of it. Qantas could hardly be expected to do more when belatedly compensating workers (and I will determine penalty on that basis), but whether the compensation is, in truth, “full compensation”, remains opaque to me on the evidence adduced by the Union at this hearing. Calculating non-economic loss on some sort of “global” basis raises considerable complications, which, in the context of class action settlements, requires the judge considering a s 33V application to assess detailed evidence (often including statistical opinion evidence) and complex legal analyses in opinions provided to the Court by counsel.
By contrast, the only material I have goes to: (a) the bare mechanics; (b) the fact that highly experienced senior counsel is involved in the process; and (c) that Qantas expects the amounts set aside to be enough and anticipates that the balance of an undistributed sum will revert to them.
I have no reason to doubt the desire of those acting for the Union to achieve the optimum recovery they perceived as achievable by way of a paction with Qantas; and the amount of compensation appears an objectively large sum. But a large sum is to be expected.
On the material I have, it seems the only witness called in the case, Ms Catherine Walsh, Qantas’ “Chief People Officer”, was right not to be definitive as to the sufficiency of the settlement. She circumspectly remarked that “the compensation that has been agreed goes some way to deal with” the affected workers being “properly remediated” (T41.45–46).
B THE APPLICABLE LAW
There is no real dispute as to the applicable provisions and principles.
The Court has the power to order the payment of the pecuniary penalty in respect of the contravention of s 340(1)(b) of the FWA. Section 546(1) of the FWA relevantly provides:
Pecuniary penalty orders
(1)The Federal 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.
…
A “civil remedy provision” is a provision referred to in column 1 of an item in the table in s 539(2) of the FWA and includes the presently relevant statutory norm being s 340(1): see s 539(1) of the FWA and item 11 of the table. The FWA does not set out the factors that the Court is to consider when making an order under s 546(1); the only requirement in the FWA is that the Court considers the pecuniary penalty “appropriate”.
The principled approach to determining an appropriate civil penalty was explained by the plurality in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450. Those principles are well settled, and I summarised them in Australian Securities and Investments Commission v GetSwift Limited (Penalty Hearing) [2023] FCA 100; (2023) 167 ACSR 178 (at 187 [37]–[48]) as follows:
First, subject to the statutory scheme in question, the primary (if not sole) purpose of a civil penalty is the promotion of the public interest in compliance with the provisions of the Act in question by the deterrence of further contraventions of that Act: ABCC v Pattinson (at 431 [9] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). Importantly for the purposes of this case, retribution, denunciation and rehabilitation have no part to play: ABCC v Pattinson (at 433 [16]).
Secondly, the power to order a person to pay a pecuniary penalty … is a discretionary one, which must be exercised judicially, congruently with the aims and purposes of the Act: ABCC v Pattinson (at 437 [40]).
Thirdly, the process of fixing the quantum of a penalty is one of “instinctive synthesis”: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 (at 37–38 [44] per Jagot, Yates and Bromwich JJ). The Court is not unanchored, however, as there must be some reasonable relationship between the theoretical maximum and the final penalty imposed: ABCC v Pattinson (at 440 [53], citing ACCC v Reckitt Benckiser at 63 [156]). The following factors have emerged as possible relevant considerations, but not a “rigid catalogue” (Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (at 580 [91] per Buchanan J); ABCC v Pattinson (at 433 [18])), and were summarised by French J in Trade Practices Commission v CSR Limited (1991) ATPR 41-076 (at 52,152–53) as follows:
(1)      The nature and extent of the contravening conduct.
(2)      The amount of loss or damage caused.
(3)      The circumstances in which the conduct took place.
(4)      The size of the contravening company.
(5)The degree of power it has, as evidenced by its market share and ease of entry into the market.
(6)      The deliberateness of the contraventions and the period over which it extended.
(7) Whether the contravention arose out of the conduct of senior management or at a lower level.
(8) Whether the company has a corporate culture conducive to compliance with the [Act in question], as evidenced by educational program[me]s or other corrective measures in response to an acknowledged contravention.
(9)Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the [Act in question] in relation to the contravention.
I pause here to note that the need to avoid adopting a checklist approach has been brought into even sharper focus following ABCC v Pattinson. The overriding need to focus on what is necessary for specific and general deterrence is the key, and the above matters are important insofar as they inform the remedial response necessary to secure the objects of deterrence.
Fourthly, the Court must arrive at a figure with a view to ensuring that the penalty is not such as to be regarded as “an acceptable cost of doing business”: ABCC v Pattinson (at 433 [17]); Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 (at 659 [66] per French CJ, Crennan, Bell and Keane JJ), citing Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 (at 265 [63] per Keane CJ, Finn and Gilmour JJ). Persons engaged in trade and commerce must be deterred from the “cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention”: Singtel Optus v ACCC (at 265 [63]).
Fifthly, careful attention to the maximum penalty may be required because, balanced with all other relevant factors, it provides a yardstick: Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd [2022] FCA 875 (at [43] per Murphy J) citing ABCC v Pattinson (at 440 [52]–[54]).
Sixthly, it has been said that even if a company is in liquidation, it may still be appropriate to order that it pay penalties as a measure of the Court’s disapproval of the contraventions, and the seriousness of the contraventions: Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 (at [26] per Bromwich J). But following ABCC v Pattinson (at 431 [9]), it is important to note that the justification of any such order is not because of retribution but because a penalty in such circumstances can further the aim of general deterrence.
Seventhly, three principles commonly utilised in criminal sentencing also inform the Court’s arrival at a penalty figure: ABCC v Pattinson (at 438–439 [44]–[45]).
The first is the so-called “course of conduct” or “one transaction” principle. In Australian Securities and Investments Commission v Westpac [2019] FCA 2147 (at [264]), Wigney J explained that “where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality”. Put another way, where conduct engaged in by an offender may technically comprise a number of separate offences, if that conduct can fairly be characterised as a single act or course of conduct, the sentences imposed should be attuned to reflect that fact and avoid double punishment: Australian Competition and Consumer Commission v Yazaki [2018] FCAFC 73; (2018) 262 FCR 243 (at 294–295 [227]–[229] per Allsop CJ, Middleton and Robertson JJ); ASIC v Westpac (at [264] per Wigney J).
The second is the “totality” principle, which requires the Court to look at the entirety of the offending and determine the most appropriate sentence for all the offences taken together: ASIC v Westpac (at [269] per Wigney J); Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd [2019] FCA 786; (2019) 370 ALR 637 (at 691 [240]–[241] per Perram J).
Thirdly and finally, parity and equal justice are relevant factors in determining the appropriate penalty: Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714; (2009) 259 ALR 116 (at 173 [319]–[322] per Gzell J); Australian Securities and Investments Commission v Flugge (No 2) [2017] VSC 117; (2017) 342 ALR 478 (at 491 [69]–[72] per Robson J). Ultimately, however, each case turns on its facts, so a review of penalties imposed in past cases is of limited utility.
I hasten to add, as emphasised by the plurality in ABCC v Pattinson (at 432 [14]), that there are, of course, limits to the “transplantation” of principles governing criminal sentencing to civil penalty regimes. Again, the focus must be on the promotion of the public interest in compliance with the relevant statutory norms by specific and general deterrence. The only “proportionality” which falls for consideration is the need to strike a “reasonable balance between deterrence and oppressive severity”: ABCC v Pattinson (at 437–438 [41]).
The only thing necessary to add is that there is a danger in approaching individual “French factors”, such as the nature and extent of the contravening conduct, the amount of loss or the deliberateness of the contraventions, by reference to reasoning drawn from the criminal law. This reasoning is well-illustrated by a decision of the Full Court (Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2022) 282 FCR 580), which approached the fixing of a penalty on the basis of what was proportionate and just in all the circumstances, and hence “appropriate” as required by s 546(1), having regard to the role of the maximum penalty provided for in s 546(2), while giving primacy to the objective of deterrence. However, following the rejection of this approach by the High Court on appeal, the principle of proportionality, and the role of the maximum penalty, both drawn from the criminal law, no longer play the role they played in relation to the imposition of civil penalties. Some pre-Pattinson cases, which used (or seemed to use) the “French factors” as a form of checklist to assess objective seriousness to ascertain, among other things, the need for retribution or denunciation, need now to be approached with great caution.
At bottom, the Court’s task under s 546 is fixing the penalty it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the FWA. A penalty will be “oppressively severe” and thus “disproportionate” if it is greater than necessary to achieve the object of deterrence: Pattinson (at 467–468 [40]–[41], 476 [71] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).
Given the circumstances of this case, consistently with the general principles explained above, it is worth pausing to highlight three points stressed by Qantas, which I will bear in mind in assessing penalty.
First, it is open to the Court to consider whether the contravening conduct occurred in extenuating circumstances; the existence of such circumstances can warrant a conclusion that a more moderate penalty would be appropriate: see Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231; (2000) 101 IR 143 (at 174 [126] per Madgwick J) (affirmed on appeal in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232).
Secondly, as to the demonstration of contrition or remorse, this is not a factor that aggravates penalty, but as the plurality explained in Pattinson (at 470 [47]), where genuine remorse for the contravention is expressed, it might be appropriate to impose a moderate penalty because no more would be necessary to “incentivise the contravenors to remain mindful of their remorse”. Thawley J, with respect, explained this concept well in Commissioner of Taxation v Bogiatto (No 2) [2021] FCA 98 (at [79]) where his Honour observed:
I accept that the lack of remorse or contrition demonstrated by the respondents, assessed in light of the respondents’ conduct as a whole, is relevant in that it suggests a higher penalty is warranted for the penalty to achieve the object of specific deterrence. This conclusion could equally be expressed by observing that there was no remorse demonstrated which might have operated to suggest that a lower penalty would have the desired deterrent effect. I do not consider that the lack of remorse is an “aggravating circumstance” in the sense that penalties should be increased simply because remorse has not been expressed.
Thirdly, the fact a party such as Qantas has defended a proceeding or pursued an appeal should not affect the amount of the penalty. To the extent such matters are relevant, they may weigh against a contravenor’s reliance on co-operation to reduce the penalty, but they should not result in it being increased: see Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 (at 285 [166] per Whitlam, Sackville and Gyles JJ); Australian Competition and Consumer Commission v Delta (No 2) [2024] FCA 580 (at [82] per Bromwich J).
C RELEVANT CONSIDERATIONS IN THE EXERCISE OF DISCRETION
To ensure, to the extent possible, there was some precision in identifying common ground and points of difference between the parties as to what matters the Court ought to consider in determining any penalty and making related orders, I ordered the provision of a document identifying the considerations the parties contended were relevant.
That ultimately proved a useful exercise, and it is worth reproducing the document provided to the Court in full:
Relevant considerations in making a pecuniary penalty order in NSD 1309/2020
A.       Requirements of deterrence
1.[Qantas] contends that the total pecuniary penalty should achieve (but not exceed) the requirements of general deterrence and specific deterrence of contraventions of a like kind. The [Union] contends that the object or purpose of the penalising exercise is the determination of a total penalty that will achieve general and specific deterrence, rather than a relevant consideration.
B.       Number of contraventions and maximum penalty
2.The number of contraventions of s 340(1)(b) of the [FWA] committed by [Qantas], being 1,820 (reflecting adverse action taken against [the affected workers].
3.The maximum penalty available to be imposed on Qantas, being 300 penalty units at $222 per penalty unit per contravention, which totals $121,212,000.
4.Whether and the extent to which the contraventions arose out of a single act (being the Outsourcing Decision) making the course of conduct and totality principles available as analytical tools for determining an appropriate penalty to achieve deterrence.
C.       Nature and circumstances of the contravening conduct
5.The purpose of the norm of conduct in s 340(1)(b) of the [FWA] and the objects of Part 3-1 of the [FWA] insofar as they are relevant to s 340(1)(b) of [FWA].
6.The nature and importance of the workplace rights the subject of the contravening conduct (being to organise and engage in protected industrial action or a protected action ballot for the purpose of advancing claims in relation to a proposed enterprise agreement, and to participate in enterprise bargaining under the [FWA]).
7. The public interest in ensuring compliance with the [FWA] and s 340(1)(b).
8.The extent to which members of senior management of Qantas were involved in the contravening conduct.
9.Whether the contravening conduct was planned and calculated (Qantas contends this consideration forms part of the consideration identified in paragraph 11 below).
10.The nature and extent of the participation of internal and external lawyers and industrial relations advisors in the contravening conduct (Qantas contends that the nature of the legal and industrial advice received by Qantas in relation to the Outsourcing Decision forms part of the consideration identified in paragraph 11 below, insofar as it shows that Qantas proceeded to make the Outsourcing Decision believing (incorrectly) that it was lawful).
11.The circumstances in which contravening conduct took place, including whether the contravening conduct can be characterised as deliberate, reckless, careless or inadvertent.
12.The impact and consequences of the contravening conduct on: (a) the affected [workers], and (b) the [Union] (which Qantas accepts but contends are limited to the period before November 2021).
13.The nature and extent of the: (a) financial benefits to Qantas as a result of the contravening conduct; (b) future financial benefits anticipated by Qantas as a result of the contravening conduct (as to sub-paragraphs (a) and (b), Qantas contends that the future financial benefits anticipated by Qantas at the time the Outsourcing Decision was made are relevant, but that any actual or anticipated financial benefits beyond November 2021 are not relevant); and (c) benefit to Qantas in preventing affected [workers] from exercising the workplace rights that motivated the adverse action (it is not clear to Qantas what the [Union] means by this consideration and so it does not accept this as relevant).
D.       Circumstances and character of the contravenor
14.Qantas’ circumstances, including: (a) its status as Australia’s largest domestic and international airline; (b) its size and resources; (c) its financial position; (d) its presence in a broader corporate structure, being the Qantas Group and the size, resources and financial position of that group; and (e) the number of employees employed by Qantas as well as its subsidiaries.
15.The extent to which Qantas: (a) has shown contrition for the contravening conduct; (b) has taken corrective action; (c) has co-operated with the TWU in prosecuting the contravening conduct; (d) has co-operated with the TWU in the establishment of a settlement fund for [affected workers] and payment of compensation to the TWU (which the TWU contends is not relevant); and (e) has, or had at the time of the contravening conduct, a corporate culture conducive to compliance with the [FWA] (as to sub-paragraph (e), Qantas contends that its relevance is in the response to the contravention, not at the time of the contravention).
16.Past contraventions by Qantas and QGS of industrial and regulatory laws (Qantas contends that only past contraventions of norms of industrial behaviour of a like character to s 340(1)(b) of the [FWA] are relevant).
E.       Other considerations
17.The adverse publicity Qantas has received as to the unlawfulness of the conduct (which the [Union] contends is not relevant).
18.The litigation has clarified that it is unlawful to take adverse action to prevent the exercise of a workplace right, even if that right is not held at the time the action is taken (which the [Union] contends is not relevant).
F.        Payment of the penalties
19.The Court’s power in s 546(3) of the [FWA] to order that payment of the pecuniary penalty, or part of the penalty, be made to the successful applicant, and the case law that has construed that power as providing that the usual order is that the successful applicant should receive the penalty (Qantas contends the case law supports the usual order subject to the considerations identified in paragraphs 20(a) to (c) below).
20.If the Court considers some of, but not all, the penalty should be paid to the [Union] (as contended by Qantas, but denied by the [Union]): the matters relevant to determining the amount that should be paid to the [Union] include: (a) the need to encourage proceedings being brought in the public interest to achieve deterrence of contraventions of the [FWA]; (b) the time, inconvenience and effort expended by the [Union] in the proceedings; (c) the need to avoid the [Union] receiving a “windfall” (the [Union] says the notion of a “windfall” is not relevant and contrary to Full Court Authority, a position with which Qantas disagrees); (d) specific and general deterrence (which Qantas contends is not relevant); (e) the resources committed by the [Union] in relation to the contravening conduct including in respect to servicing and assisting its members and the in-house bid process (which Qantas contends is not relevant); (f) the resources which will continue to be committed by the [Union] to the settlement administration (which Qantas contends is not relevant); and (g) that any penalty amount will otherwise be applied in accordance with the [Union]’s rules and consistently with the requirements of the Fair Work (Registered Organisations) Act 2009 (Cth) (which Qantas contends is not relevant).

What I propose to do (at section F below) is to organise findings into headings corresponding with, or incorporating, these identified considerations. But before turning to this task, it is appropriate to deal with two preliminary issues: first, a general issue related to fact finding (section D); and secondly, a specific issue raised at the compensation hearing and during the present hearing (section E).
D PREVIOUS FINDINGS AND FURTHER EVIDENCE
Except as where necessary below, I will not set out my earlier detailed findings. Those of especial importance can be found in the LJ (at 280–308 [93]–[202], 324–330 [282]–[305]) and the DJ (at 336–339 [6]–[18]). For convenience, however, it is worth making brief reference to the roles of several of the principal actors and some central findings:
(1)Mr David, the CEO of Qantas Domestic and International, was found to be the relevant decision maker; he gave evidence as to the substantial and operative reasons for the outsourcing decision; and I fell short of being persuaded that Mr David did not decide to outsource the ground operations partly to prevent the exercise by the affected workers of their workplace right for the prohibited reason and in this respect, Qantas did not discharge its onus: LJ (at 329–330 [302]).
(2)Mr Paul Jones, at all relevant times, was the Chief Operating Officer of Qantas Airlines, reported to Mr David, and was a member of the Qantas Airways Leadership Team; Mr Jones held the prohibited reason (LJ (at 322 [272], 325 [287])); Mr Jones and Mr David worked closely together and there is no reason to doubt that they exchanged their views with one another in relation to matters they perceived to be important to the business – and it is more likely than not that they would have been candid with one another in relation to their views as to the options and recommendations for the business of Australian Airports discussed at Qantas Group Management Committee (GMC) meetings: LJ (at 266 [60]).
(3)Mr Colin Hughes was the Executive Manager of Qantas Airports and reported to Mr Jones; Mr Hughes also held the prohibited reason: LJ (at 330 [305]).
(4)The GMC was comprised of the leading executives within the business; although the GMC was involved in the decision-making process, I did not find that the members of the GMC (or any member of it) acted as the decision maker (LJ (at 304 [185])); in the CJ (at 206–207 [36]) I expressed uncertainty about this conclusion (but did not alter my earlier finding).
Importantly, for reasons set out in the DJ, I made a declaration as follows:
1.[Qantas] by its Chief Executive Officer, Qantas Domestic and International [Mr David], in making the decision announced on 30 November 2020 to outsource its ground handling and fleet presentation operations at ten Australian airports (relevant airports) to third party providers, engaged in conduct which contravened s 340(1)(b) of the [FWA], by taking adverse action against:
(a) employees of Qantas who performed ground handling and fleet presentation work at the relevant airports and whose employment was covered by the Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018 (Qantas employees) for the purposes of Item 1(c) of s 342(1) of the Act by prejudicially altering Qantas employees’ positions; and
(b) employees of [QGS] who performed ground handling and fleet presentation work at the relevant airports and whose employment was covered by the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS employees) for the purposes of Item 3(c) of s 342(1) of the Act by altering QGS’ position to its prejudice in relation to its contract for services with Qantas,
for reasons, which included to prevent the exercise by the Qantas employees and QGS employees in 2021 of their workplace right, following the nominal expiry of the relevant enterprise agreements, to: (i) organise and engage in protected industrial action or a protected action ballot for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement; and (ii) participate in enterprise bargaining, under the Act.
The Full Court judgment summarised my findings (at 40–42 [5]–[18], 44–62 [26]–[83]) and dismissed challenges made to those findings by Qantas (in its notice of appeal) (at 76–97 [140]–[218], 103–105 [242]–[252]) and the Union (in its notice of contention) (at 90–93 [191]–[203], 97–103 [219]–[241]). It also dismissed an appeal by the Union from the orders made in the RJ. The High Court judgment summarised those findings (at 588–590 [7]–[17] per Kiefel CJ, Gageler, Gleeson and Jagot JJ, 602 [59]; 602–603 [62] per Gordon and Edelman JJ).
But then, when the matter returned to me for further hearing, there were additional developments – not only without demur from any party but with their mutual consent.
In the CJ (at 193 [18]), I noted that further evidence was adduced by both parties at the compensation hearing, without objection, which addressed broader issues or matters of context and which, in some respects, qualified or modified facts previously found in the LJ or the RJ. Most importantly, this further evidence consisted of representations made in documents by both Qantas employees, consultants, and solicitors over which Qantas had, until shortly before the compensation hearing, claimed legal professional privilege (when verifying discovery) or client legal privilege (when evidence was adduced at the liability hearing) (waived material). I further noted that neither party disagreed that in determining the facts relevant to the compensation task, it was open to the Court to rely not only upon any facts found in the LJ or RJ, but importantly, “it was also open to the Court to make additional findings on the same topics or to revisit or qualify previous findings made (given the necessity to have regard to all of the evidence in ascertaining the facts relevant to the current compensation enquiry)” (at 193 [18]). All the evidence included, obviously enough, the waived material which revealed candid, contemporaneous communications not available to the Court when resolving the issue of liability.
Qantas accepts at this hearing (as it must, given the above) that “findings relevant to the contravening conduct and other considerations that bear upon the appropriate penalty have also already been made in the [CJ]”.
This is of significance, because notwithstanding the findings made in the LJ, following the receipt of the further evidence, I found, in the CJ (at 206 [35]), that in considering what actually went on in making the outsourcing decision, we are “looking through a glass darkly” and the reality was that non-privileged contemporaneous business records were prepared with an eye to eventual disclosure in litigation thought to be inevitable. This fact “and the unreliability of the affidavit evidence” were remarked upon as having “presented real challenges to fact finding in this case”: CJ (at 206 [35]).
There was some disagreement between the parties as to whether certain further findings sought by the Union were open to be made at this hearing for the first time. The position of Qantas was that in the light of my findings and the procedural history, it is not open for me to make some findings urged upon me by the Union and, specifically, the Union was precluded from submitting that Qantas made the outsourcing decision in the knowledge it was unlawful or was reckless as to its lawfulness. This is a matter to which it will be necessary to return.
At the penalty hearing, leaving aside the previous evidentiary record, which was treated as being before me, the parties helpfully co-operated in agreeing most relevant facts (under s 191 of the Evidence Act 1995 (Cth) (Evidence Act)) for the purpose of tender: see Ex A, Ex B and Ex D. Many documents were tendered relevant to disputed issues (Ex C and Ex E–H) and only one witness was called, Ms Walsh (T12.12). As already foreshadowed, to the extent necessary, I will record my findings directly and inferentially drawn from this evidence below.
E THE DISPARITY ISSUE
One matter canvassed in the CJ was the disparity between the affidavit evidence as to the making of the outsourcing decision adduced at the liability trial and the true picture as revealed by the material produced on discovery and, in particular, by the waived material.
On one level, the further revelation occasioned by the waived material was unsurprising. I was already critical in the LJ of the lack of accuracy in the evidence adduced by Qantas. Recognising this reality, in its final submissions at the penalty hearing, Qantas accepted that the affidavits and other evidence at the liability trial “did not present the reality in some respects”. Indeed, in the LJ, I made findings such as:
(1)the representations in affidavits read at the liability hearing, which attempted to paint a picture that until after the assessment of the in-house bid (IHB) in November, persons such as Mr Jones and Mr Hughes were essentially agnostic as between different options, were described as “entirely unpersuasive”: LJ (at 294–295 [139]);
(2)the “carefully drafted” evidence-in-chief of Mr Hughes and his subordinate, Mr Nicholas, was “tortured and overcomplicates what actually happened”: LJ (at 302–303 [179]);
(3)the evidence of the in-house solicitor, Mr Andrew Finch, presented an incomplete impression as to the preparation of documents, which had the effect of bolstering the notion advanced by Qantas that certain steps were routine: LJ (at 277 [85]);
(4)despite the fact that Mr Ian Oldmeadow had various meetings in relation to the outsourcing proposal throughout 2020, his attendance, the nature of his contribution, or any detailed expression of any reservations he had as Qantas’ industrial relations consultant, about adopting a strategy he was “very concerned about” and regarded as “high risk”, was not addressed in the affidavit evidence: LJ (at 287 [121]); and
(5)there were differences between authentic aspects of the evidence given by Mr David orally, and the account given by him in his affidavit and these were “sufficient for me to harbour doubts about whether I [could] be satisfied as to the persuasiveness of the written evidence”: LJ (at 328 [296]–[297]).
But, as more was revealed following the LJ, the starker was the disparity between the affidavit evidence adduced by Qantas and the reality. Having reviewed the waived material at the compensation hearing, my concerns reflected in the LJ were fortified significantly. Then informed by a more complete and franker picture of what had gone on, following the compensation hearing, I noted I was “unconvinced the initial affidavits filed by Qantas prior to the liability hearing, as they presented the decision-making process, revealed anything like a candid and complete narrative”: CJ (at 194 [21]).
During final submissions at the penalty hearing, I remarked that I raised this concern at a recent case management hearing as being a matter that could be relevant to penalty (but noted I wished to check the transcript). Having done so, it is apparent my concerns were expressed at the compensation hearing and not at the most recent case management hearing. I noted (T579.30 –34):
HIS HONOUR: Notwithstanding the case-in-chief adduced by Qantas at the hearing. I mean, this is one of the things I have to worry about ... I mean, that case revealed in that affidavits reflected something which just simply did not accord with the reality of what was going on, in numerous respects, and as my findings made clear. And it’s only added to when one sees the candid contemporaneous legal advice that was given, and it does cause me concern, I must say.
In any event, on the first day of the penalty hearing, without objection, Mr Hutley SC for the Union asked Ms Walsh, during cross-examination, when exploring issues relating to the “culture” of Qantas (T38.30–40):
Did you go through the affidavits at the original hearing?---No, I did not.
Would you – do you recall when you read his Honour’s judgment that his Honour in relation to the compensation – sorry – the original hearing expressed some concerns about the affidavit material which was put before him?---Yes. I do recall that.
And have you taken any steps about those concerns expressed by his Honour from a point of view of the culture of Qantas?---Well, in respect that we have not had a matter such as this to contemplate those specific issues, I have not had regard to, but I’m aware of the commentary and the criticism, and if that was to arise again I would have regard to that.
During the Union’s oral submissions in-chief, I had the following exchange with senior counsel for the Union, Mr Hutley (T92.28–93.7):
HIS HONOUR: … I would like to receive submissions about it, but I went through, because they are before me as part of the record, I’ve looked at the respondent’s revised outline of submissions which were filed on 8 April 2021; the respondent’s closing submissions, which were filed on 11 May 2021; the respondent’s closing submissions supplementary submission response to the TWUs submissions, 6 May 2021, which was filed on 10 May – 11 May 2021; and the affidavits that were read at the liability hearing, I don’t know whether anyone wishes to say anything about the disparity between various aspects of those submissions and what we now know to have been going on within Qantas.
MR HUTLEY: Perhaps an appropriate way of dealing with it, my learned friends [deals with] it first, and I will deal with it in reply.
HIS HONOUR: Yes. I would be grateful because I just want to know what I should do with that, and how – to the extent that it is relevant, how that factors into the process because no doubt the people putting forward those submissions and reading those affidavits were acting on instructions.
MR HUTLEY: Now, so, again, reflective of the culture, this was a very large piece of litigation, which, by any terms, went disastrously for Qantas, which involved very serious misconduct, and your Honour had observed upon your concern about the affidavits. What is being done with it, about that? Nothing, because there hasn’t been another piece of litigation, as we understood her evidence.
Now, with respect, you prepare for these things if you’re truly seeking to deal with cultural issues long before the eventuality arises. It’s too late when you’re in the thrall – in the throws.
When Mr Gleeson SC for Qantas provided his oral submissions, I returned to the point (T174.1–176.21). The reference to “Mr Doyle” in the following exchange is to Mr Rohan Doyle, an industrial relations partner, and the solicitor for Qantas in this proceeding (LJ (at 301 [172])):
MR GLEESON: … But the second aspect is, whether it was thought or said or both, the best explanation of it is that at this point in August, when they are very close to the final decision being made as the documents indicate, Mr Doyle knows that it’s a decision being made for the three commercial reasons, and Mr Doyle is cautioning either himself or perhaps those who are listening to him that, of course, if a reason of this other character intruded into the process, then we would have a problem.
HIS HONOUR: Can I just pause there for a moment because that is the thing that really causes me a difficulty. You’re quite right to say that as of 20 March – sorry – that as at 10 August 2020, as Mr Jones says frankly at page 946, the decision has been made, and what they’re on about is mitigating risks, and that marries up all the representations in this document. Then you get the case that is run before me at trial, which is the complete opposite, that no decision was made, and as I say at [LJ [136]], all the affidavits and all the submissions were relevant that until after the assessment of the IHB in November, persons such as Mr Jones and Mr Hughes were essentially agnostic as between different options. Now, I described that as entirely unpersuasive, but that was the case that was run. That was the case that emerged from the affidavits. That was the case that was opened on. That was the case that was closed on. How conscientiously could that case be run in front of a judge of the court when someone knew what was known in these meetings on 10 August, Mr Gleeson? And how does that factor into the need for general deterrence? To say what I said the other day, you can’t come along and run false cases in court.
MR GLEESON: I have accepted the question of conduct of the case is relevant.
HIS HONOUR: But isn’t it serious?
MR GLEESON: That’s my first submission. I’ve accepted that.
HIS HONOUR: Yes.
MR GLEESON: My next submission is, your Honour needs to exercise some caution and restraint within the confines of what is an adversarial proceeding. This is not to undermine my first submission, but you put this concern to Mr Hutley on Monday, and he made very clear how he puts his case. His case is this goes to culture. He says – he did not make the type of submission your Honour just put to me a moment ago. So there is an important issue. It’s not just a procedural one. But in terms of the nature of an adversarial penalty hearing, I’m not excluding the court’s ability to raise matters squarely and then have them considered. But it starts as an adversarial hearing, which was one of the points the High Court re-emphasised in, I think, it was Fair Work Building Inspector in 2015, which your Honour recalls is the time when the notion that the parties could even make submissions on the appropriate penalty, which had received a lot of traction in this court, particularly in the Queensland registry, Dowsett J and others, that effectively this is a quasi-criminal trial, and so neither side can tell the court.
HIS HONOUR: Yes.
MR GLEESON: And the High Court re-emphasised that it is civil adverse litigation, and so the issues are those joined, and the submissions are those joined, which is why Mr Hutley is entitled to say, “I want $120 million.” On the Dowsett J approach, he should not have been permitted to say that, but the High Court has said what they have. So my note of caution to your Honour is, within the adversarial process, the primary thing we must meet is Mr Hutley’s suggestion of a cultural problem. If your Honour says, “Well, as the, in effect, the sentencing judge, the penalty judge, I cannot put out of my mind the observations I have not only formed but have expressed in my judgments as to the conduct of the case”, our answer to that is you may look at them, and that is why we have collected each paragraph where your Honour has made such an observation. We are urging your Honour caution in going a further step and saying – making any finding – we would oppose this – any finding to say there was improper conduct of litigation before me by those representing Qantas at the time. We would urge your Honour - - -
HIS HONOUR: Well, I wouldn’t do that without giving procedural fairness to the individuals.
MR GLEESON: There would need to be procedural fairness to the individuals, and any such finding would implicate at least the solicitors running the case. They may implicate counsel who ran a case and put their name on submissions, depending upon what counsel were instructed. They would certainly implicate the instructors. Now, what we submit is that is not an exercise that you should entertain at this stage. What you should do - - -
HIS HONOUR: Well, can I say this because I don’t want to [alarm] people. I meant what I said the other day. I don’t regard myself as a roving legal service commissioner, and – but I do – and if I was intending to make such findings, I would already indicate that I would feel it appropriate that people be represented and have the opportunity of putting on submissions.
MR GLEESON: Yes.
HIS HONOUR: So I don’t want people having unnecessary concern about that.
MR GLEESON: Thank you, your Honour.
HIS HONOUR: But I do want to say this, that it may – it seemed – I must say after now hearing this the three – that seems the most aggravating aspect, and I don’t mean aggravating in the literal sense to me, of the conduct. It’s expressly not embraced by the applicant, and the question is, well, given the nature of the adversarial proceeding, I say, well, they’re not interested in it. Therefore, I put it at nought and don’t factor it into the penalty process, or independently I decide that I have to have regard to it. But the focus is on Qantas’ conduct, not on the conduct of the legal practitioners.
MR GLEESON: Yes. And – thank you, your Honour. So that’s – we are grateful for that. There is also at least the possibility of a more benign explanation of what became exposed before your Honour in the case. Now, what I mean by that is this: to the extent we have and I have accepted criticism on behalf of Qantas about the process, and I’ve tried to make that concession tolerably clear, and Ms Walsh made this concession clear as well when she said, “What we’ve learnt from this is we insufficiently interrogated ourselves as to why we’re doing this now.” That is where the error lay. So we’ve made those concessions, and what got into this process, which should not have got into the process, was too intense a focus upon, “Can we defend those commercial reasons?” And to the extent the case was presented to your Honour in the areas that you’ve expressed concern about, including not sufficiently indicating that they were pretty much at the go stage - - -
HIS HONOUR: Well, it was more than not sufficiently indicated. It was running a precisely opposite case because they thought – because obviously it was thought that that better suit the interests. I mean, it’s just something you don’t necessarily see in other forms of – I mean, I – anyway, I just find it strange.
MR GLEESON: So I put my submission, your Honour, about urging – restraining your Honour has made observations about what you would do if you were in the territory of taking that matter further.

Following submissions in reply, and without, it seemed to me, detracting from the acceptance by Qantas that the “conduct of the case is relevant” it was submitted it was not open for the Court to make additional (T211.40–43):
… adverse serious findings – about the way our case was conducted without identifying [an] individual and giving them procedural fairness extends to the proposition that Qantas can have such a finding made against it because the litigation can only be run by people instructing lawyers.
Reference was then made to the matters Qantas had accepted could be taken into account for their relevance in the hearing (T215.1), being that: (a) Qantas accepted that it allowed the process to become too focussed on protecting any decision from a legal challenge, at the expense of more robust interrogation of the real reasons for the decision; and (b) as noted above, the affidavits and other evidence at the liability trial did not present the reality in some respects, such as on the power of attorney issue (LJ (at 300 [170])) and presenting the decision as some organically evolving process where management agonised over the IHB process: see LJ (at 252 [19]), CJ (at 229 [140]).
In the light of the above, and after rereading the transcript after I had reserved, I thought it was prudent to seek some clarification from Qantas as to whether I was correct in my understanding of what it accepted was relevant and whether it said everything it wished to say in response to written submissions made by the Union that had not been specifically addressed by either party during final address.
In particular, I requested Qantas confirm whether, consistently with my understanding following the above exchanges, it had placed before the Court all material upon which it relied in relation to the question as to whether it ought be concluded that Qantas adduced positively and materially misleading evidence before the Court at the liability hearing (in the respects identified at [53] above and as to the contemporaneous motivations of Messrs Jones and Hughes); and whether Qantas accepted that if a conclusion was made that positively and materially misleading evidence was placed before the Court, this would be a proper consideration in assessing penalty (as it would be relevant to both specific and general deterrence).
This reference to the characterisation of the evidence as “positively” and “materially” misleading repeated the words used in the written submissions of the Union on 24 April 2025 (and 14 May 2025) (at [7] and [93]). The Union contended that Qantas presented affidavits at the liability hearing “that were in several material respects inaccurate and, others, materially misleading” and “were, unreliable and, in a number of respects, positively misleading” (a submission which was said to be exemplified by Mr Finch’s evidence about the process for the drafting and execution of the entirely unnecessary power of attorney: see LJ (at 275–278 [82]–[86], 299–302 [161]–[175], 326–328 [291]–[296])).
The response of Qantas to my request for confirmation can be broadly summarised as follows:
(1)Qantas’ conduct of its case at the liability hearing may be relevant to general and specific deterrence;
(2)the Court may consider the findings already made;
(3)as to the affidavit evidence of Messrs Jones and Hughes, the Court has already made findings as to the affidavit evidence at the liability hearing, which are accepted as relevant in the fixing of an appropriate penalty;
(4)as to the findings already made about Qantas’ conduct at the liability hearing, it is open to the Court to take them into account in finding that “Qantas should not receive any benefit for an early recognition of the contravention and that it will not reduce the penalty below where it might otherwise be” and the “Court should exercise restraint in the instinctive synthesis in going the opposite way”;
(5)it is not open to the Court to go a step further to find that “Qantas adduced positively and materially misleading evidence before the Court at the liability hearing” in part, because the word “positively” conveys that Qantas engaged in deliberately improper conduct by “presenting and relying on one or more facts that were untrue (and, it would seem, known to be untrue)”;
(6)the issue as to whether “Qantas adduced positively and materially misleading evidence at the liability hearing”, cannot be fairly litigated without the clearest of identification of who the individuals are on behalf of Qantas who are said to have been involved; what specific pieces of evidence are relevant; and what specific acts by the individuals evince their wrongdoing; and
(7)the lack of precision in the Union’s written submissions causes insuperable difficulty in considering this issue; this difficulty is compounded because the oral submissions made on behalf of the Union at the penalty hearing were directed to the issue of “culture” and “were not that Qantas adduced ‘positively and materially misleading evidence’”.
The point was then made, several times, that the Court is not “sitting as a disciplinary tribunal” and cannot “suo motu, identify ‘questions’ that it decides it wishes to investigate and potentially determine adversely” and it is not open to the Court to investigate such a “question” consistently with proper judicial method and power.
In response, the Union agrees Qantas’ conduct of its case at the liability hearing is relevant and the Court may consider the findings made in the LJ and CJ, including the findings made as to the evidence given by Messrs Jones and Hughes. The Union maintains that it directed its case to Qantas’ management of the unlawful outsourcing exercise and the structure which it set up, which was apt to produce a circumstance where affidavits were presented to the Court that were not candid in the respects found by the Court: T210.31–32, T210.41–42 and T211.1–8. It further maintains that: (a) the evidence put forward by Qantas did not reflect the reasons of Qantas: T61.15–18; (b) the waived material provided “graphic confirmation of the Court’s findings about the proscribed motivations of Mr Jones and Mr Hughes” (see T191.44–47); and (c) its submissions (see [56] above) were directed to the Court’s conclusions reached at the liability and compensation stages about the affidavits filed by Qantas: see for instance CJ (at 194 [21], 206 [35]), and LJ (at 275–277 [82]–[83], 277–278 [85]–[86], 286 [118], 287 [121]–[122], 300–301 [170]–[174], 303 [180], 325–328 [289]–[297]).
The Union also expressly confirmed it did not (and does not) advance a case criticising Qantas’ solicitors (both in-house or external) or the counsel involved in the preparation and presentation of Qantas’ case and affidavits, and does not contend that any person procured or put forward a particular witness’ evidence knowing that the witness was not being candid.
In the end, leaving aside questions of weight and whether the issue is relevant to more than the absence of co-operation, there is little difference between how the parties generally approach this issue. Further, this approach seems to me to be sound. But to avoid any misunderstandings, it is worth making seven preliminary points as to how I propose to deal with what I will describe as the disparity issue and consider it potentially relevant to the determination of penalty.
First, as noted above, I found in the CJ (at 194 [21]): “while the written evidence was carefully drafted and settled by lawyers, I am unconvinced the initial affidavits filed by Qantas prior to the liability hearing, as they presented the decision-making process, revealed anything like a candid and complete narrative (T633.10–14)”; this finding going to the “conduct of the case” at the liability hearing, and the response of Qantas to this finding, is relevant to the then “culture” of Qantas and its alleged change, and hence to the need for deterrence.
Secondly, as a general proposition, a Court should only make findings, particularly any additional adverse findings, insofar as they are necessary to resolve the issues at hand.
Thirdly, in any event, given the state of the evidence, I do not have any secure basis to understand precisely what happened during privileged communications in the process of preparing for, and conducting, the liability hearing.
Fourthly, although a penalty hearing involving a discretion to determine what is “appropriate” having regard to all the relevant circumstances, this proceeding is of an adversarial nature and the Court should be wary in embarking on a course of investigating any matter on its own motion and making findings not the subject of identification by the party seeking relief. Consistently with the way issue has been joined, I do not propose to consider whether there is a basis to find Qantas engaged in deliberately improper conduct by presenting and relying on one or more facts that were untrue (or to make any such finding).
Fifthly, and relatedly, I have not heard from any individual involved in the conduct of the liability hearing; consistently with my indication at the conclusion of the hearing, and the approach taken in the oral submissions of the Union, no findings I make are intended to be critical of the conduct of any individual involved in the running of the litigation.
Sixthly, any observations below as to the disparity issue are intended, and should be perceived to be, directed to whether my earlier findings, have been understood or recognised by the contravenor and thereafter adequately investigated and addressed as part of its asserted process of corporate cultural change. The position of the Union is, of course, that it has not been, and that this is relevant to the issues of deterrence – I will deal with the merits of this submission below. Further, part of the final argument of Qantas as presented in its closing submissions, directed to general deterrence, is that this case has already been a “wakeup call for corporate Australia” on the topic, among other things, of “how litigation should be prepared for and run”; the merits of this submission will also be considered below.
Seventhly, and critically, and at the risk of repeating the first point, despite my reference (see [51] above) to the truism that “you can’t come along and run false cases in court”, the disparity issue has no relevance, in and of itself, as some freestanding matter going to the proper administration of justice. Plainly, as I have already explained, any notions of retribution or denunciation going to deficiencies in the evidence adduced do not have any role to play and must (and will) be put to one side. The disparity issue, or perhaps more accurately, the disparity sub-issue, is relevant because it goes to the broader corporate culture of Qantas, which was reflected in the structuring and management of the outsourcing exercise, and which resulted in deficient evidence being adduced. The issue goes beyond considering whether Qantas’ conduct at the liability hearing bears upon the absence of co-operation: as the Union correctly submits, how much the culture that gave rise to the contravening conduct has been proven to have changed is relevant to identifying the necessary remedial response focussed, as it is, on deterrence.
F FINDINGS AS TO THE RELEVANT CONSIDERATIONS
In this section I propose to make findings (or identify earlier findings) which are material to the relevant considerations (see [34] above).
F.1 Number of Contraventions and Maximum Penalty
As noted above, the number of contraventions of s 340(1)(b) of the FWA committed by Qantas was 1,820, reflecting adverse action taken against the affected workers (leading to a maximum penalty available to be imposed of $121,212,000).
F.2 The Outsourcing Decision as a Single Act
Although the outsourcing decision was a “single act”, it was a carefully planned act directed at, and affecting, a very large number of employees.
F.3 Involvement of Senior Management of Qantas
The contravening conduct was found in the LJ to have involved the following persons who could be said to comprise members of Qantas’ senior management: Mr David; Mr Jones; and Mr Hughes.
This is sufficient to conclude that senior management was involved in the contravening conduct, but the Union places significant reliance upon the waived material to reveal the involvement of others in the decision-making process. The Union notes that following the LJ, diary notes were revealed, which disclosed details of two video conferences held on 1 June 2020. Partly in reliance on this material, I found (CJ (at 195 [26])) that during these 1 June conferences, five options presented in a slide pack were discussed, which included the proposal to outsource and that the proposals were to be presented to Mr Alan Joyce (then group CEO) the following day, so that Mr Joyce could “understand the whole range of options” and “identify all the options in between”.
I also referred to the involvement of “long-standing industrial relations adviser to Qantas, Mr Oldmeadow” who “always held” the view Qantas “not being in ground handling [was] the right thing”: CJ (at 205 [30]–[31]). The notes record that Mr Oldmeadow was acutely concerned as to the risk of making the outsourcing decision and was conscious of the “need to map these issues out for Alan. It’s going to be a very bloody fight. And who knows where the Government will go at the moment”. Mr Jones also referred to Mr Joyce when he said he needed “clarity on point of view of confidence about ability to deliver on these options. But from legal and industrial point of view, what timeline is reasonable, and what is the level of risk. Felt as though for each of these, HSF advice was we could pick these options, not without risk, but need to go to Alan tomorrow”.
More generally, and as already noted above, I found (CJ (at 206–207 [35]–[36])) when it comes to ascertaining precisely what went on within senior management of Qantas:
… we are still looking through a glass darkly. The reality that contemporaneous business records were prepared with an eye to eventual disclosure in litigation thought to be inevitable and the unreliability of the affidavit evidence have presented real challenges to fact finding in this case. This problem has been exacerbated by the fact that no minutes or notes were discovered of the GMC or a GMC Sub-Committee or the Project Restart Steering Committee (formed by the GMC): LJ (at 253 [22]). What was communicated orally, of which there is no record, remains obscure, and, as I found (LJ (at 283 [108])), the use of a “voice over” expedient by Mr Jones in dealing with the GMC, on one occasion, was an attempt to prevent his real views being recorded in a contemporaneous document likely to be preserved. In this regard, it is notable that one of the most revealing documents in the case (the handwritten notation from Mr Jones: “Voice-over labour Gov Lockin benefits + open EBAs 2020 DEC”: see LJ (at 266–267 [63], 272 [67], 281–282 [102]–[103])) was only disclosed because a standard discovery order was made (opposed by Qantas) and because Mr Hughes just happened to scan the handwritten notes made by Mr Jones and sent the scanned annotated document to Mr Nicholas (LJ (at 266 [62])).
Although, in the end, these concerns about the completeness of the evidence are heightened by the revelation of specific discussions between Mr Jones and the absent Mr Joyce whereby the CEO, as early as May, “wanted to understand the whole range of options” (held at a time when Qantas “will never have another time like the present”) leaves me with a sense of disquiet and uncertainty as to precisely what went on within the upper echelons of Qantas leading up to the outsourcing decision. What can be said is that any decision to outsource in 2020 was not straightforward and despite the enthusiasm of some, those with the most industrial relations experience were chary about Qantas going down the outsourcing road.
(Emphasis added)
The Union places emphasis upon the revelation of the “central importance of Mr Joyce to the decision-making process in 2020”, that Mr Joyce was “someone who was being engaged with by senior personnel involved in the decision-making process” and that the “efforts of senior managers and advisors at the meeting of 1 June 2020 appear to have been directed to analysing and presenting options to the CEO and Managing Director for his evaluation, opinion and decision”. Reference is also made by the Union to Qantas’ Board and GMC being consulted and engaged, noting that Mr Jones was found to have made his “voice-over” during the 29 May 2020 GMC meeting.
In response, Qantas contends that the Court cannot now entertain a submission that Mr Joyce was involved in the decision-making process or that Qantas sought to hide Mr Joyce’s involvement by: first, “invoking legal professional privilege to cloak Mr Joyce’s involvement”; and secondly, “the selection of Mr David to give the appearance that Mr David was the solitary decision-maker for this most momentous decision”. Primarily, this is because the Union did not put this proposition to Mr David at the liability hearing or at the compensation hearing. Qantas also submits that the proposition now advanced by the Union is inconsistent with the finding (CJ (at 210 [52])) that Qantas “fastened” upon Mr David as the decision maker because Qantas considered “that his selectionbest assistedthe inevitable legal defenceoftheoutsourcing decision in this Court” and the terms of the declaration itself (set out at [37] above).
As it turns out, in this aspect of the case, I do not need to resolve the procedural fairness argument raised by Qantas.
I meant what I said in the CJ: I used the metaphor drawn from the First Letter of St Paul to the Corinthians advisedly; it reflected the reality that we have an imperfect vision of precisely what occurred “within the upper echelons of Qantas leading up to the outsourcing decision”. Even though, in the wake of the waived material provided to me after the LJ, I harbour doubts as to the conclusion I reached in the LJ as to Mr Joyce not being directly involved in the outsourcing decision, it is unnecessary for me to explore these doubts further and attempt to resolve them. The same applies to the GMC or other members of the Board.
Consistently with the declaration made, I will continue to proceed on the basis that Mr David was the decision maker directly assisted by the involvement of Mr Jones and Mr Hughes. Those persons were regarded as being sufficiently senior members of management to propose, evaluate and then make such a signally important decision on behalf of the company. Qantas does not suggest that the decision was not made by senior management within the organisation, just because it was not made by the CEO or the Board. Accordingly, as part of the synthesis of factors discussed below, the involvement of persons regarded by Qantas as sufficiently senior to propose, evaluate and then make a decision of this importance goes to the nature of Qantas’ contravening and is relevant to assessing the demands of deterrence.
F.4 Whether the Contravening Conduct was Deliberate or Reckless
I Introduction, Procedural Fairness and Mr David
A related but more complicated point arises in dealing with the submission of the Union that I should find that the contravening conduct of Qantas was deliberate or reckless.
Qantas contends that because no finding has been made to date that Mr David knew the decision would be unlawful or reckless, the Union should not now be permitted to seek such a finding. Given the Court found it could not be satisfied Mr David was motivated by the prohibited reason, it cannot go the next step and say he knew it was unlawful or was reckless to that reason. Further, by no later than the compensation hearing, the Union had a full opportunity to seek that finding and make submissions about it, including with access to the waived material which had been produced to them in March 2024.

Consideration of the question as to whom the relevant funds should be paid in the circumstances of this case must start with a detailed analysis of the nature of the power being exercised.
In large part, this analysis has been provided by the Union’s submissions recounted above and by the detailed reasoning by the members of Full Courts in Plancor and Botany Cranes. But it is worth revisiting some first principles.
Section 546(3) of the FWA is in the following terms:
Pecuniary penalty orders
…
(3)  The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a)  the Commonwealth; or
(b)  a particular organisation; or
(c)  a particular person.
The term “organisation” is defined in the dictionary to the FWA (s 12) to mean an “organisation registered under the [FWRO Act]”. The Union is, of course, such an organisation.
Six things are immediately evident about the power.
The first is that the section confers, by the use of the word “may”, a discretion upon the decision maker: see s 33(2A) of the Acts Interpretation Act 1901 (Cth).
The second is that the discretion is not limited or confined by express words, save for (a broad) identification of permissible recipients of the whole or part of a pecuniary penalty.
The third, is that like all discretions conferred upon a court, it must be exercised judicially and in accordance with legal principle.
The exercise of a judicial discretion generally allows a judge to make a choice between lawful, but different courses of action and the concept necessarily implies choice; it follows that generally, there cannot be one uniquely correct outcome to the exercise of the discretion. Given it is inappropriate to read provisions conferring powers to a court by making implications or imposing limitations which are not found in the express words (Owners of Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 (at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ)), the suggestion of the Union that only “extraordinary circumstances” could justify the exercise of the discretion in s 546(3) in a manner different to the usual order is one with which I have some difficulty.
I accept the force of the analysis of the Full Courts in Plancor and Botany Cranes as to the historical development and rationale of the usual order. In my respectful view, and consistently with Full Court authority, the best way of describing the application of the usual order is like the approach taken to another broad judicial discretion: being that relating to costs. As Gleeson CJ, Gummow, Hayne and Crennan JJ explained in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 (at 62–63 [25]–[26]) although there is “no absolute rule”, one of the “general propositions” regarding an award of costs is that “the award is discretionary but generally that discretion is exercised in favour of the successful party”: see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at 88–89 [40]–[41] per Gaudron and Gummow JJ).
Here, there is no absolute rule as to s 546(3), and the making of an order regarding the recipient of whole or part of a penalty is discretionary, but generally, where there is a common informer, that discretion is exercised in favour of the person responsible for the bringing of the case. I do not think the Full Court cases to which I was referred require a different approach and the need to identify “extraordinary circumstances” to depart from this general or usual course in cases of this type seems to me an unnecessary complication and gloss.
Fourthly, textually the better view is that the payment be made to an identified recipient and not another person to hold the funds on trust for a beneficiary or beneficiaries.
Fifthly, the section does not provide a power for the payment to be made pursuant to an express condition or conditions. There is nothing textually or in the case law to suggest that the way in which a recipient of a pecuniary penalty proposes to spend the money is relevant to the amount that should be paid to the proposed recipient. Further, as Qantas points out by analogy, consideration of how a recipient would spend a pecuniary penalty is inconsistent with the well-established authority that a plaintiff who receives a compensatory sum is free to do with the sum awarded what they wish, and a court is not concerned with how it is applied: see, for example, Todorovic v Waller (1981) 150 CLR 402 (at 412 per Gibbs CJ and Wilson J).
Sixthly, having regard to the text, context and purpose, there is no reason why all orders for the payment of a penalty need to be made at the same time, or why two orders for payment cannot be made in relation to the same recipient at different times.
Finally, by way of preliminary observation, it is useful to have regard to the relationship between ss 545 and 546.
Section 545(1) confers a broad power to make “any order” that is “appropriate”. In Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 the plurality held (at 190–191 [103]):
… 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
(Footnotes omitted)
The relationship between the two sections is illustrated by the explanation, provided (at 191 [104]), that under s 545(1) “the types of orders that may be regarded as ‘appropriate’… are … preventative, remedial or compensatory orders, or at least do not include penal orders”.
Kiefel CJ (at 168 [22]) explained that s 546(1) was the applicable source of power for the imposition of a pecuniary penalty and that this specific grant of power to make penal orders in s 546(1) involved a denial of power to do the same thing under a different provision free from the conditions prescribed by s 546: see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (at 7–8 per Gavan Duffy CJ and Dixon J). Keane, Nettle and Gordon JJ reached the same conclusion.
II Payments to Common Informers and the Unusual Circumstances of the Case
The first thing to note is that even if the principled approach does involve identifying whether there are “extraordinary circumstances” to depart from the “usual course”, such circumstances manifestly exist in the present case.
As I noted at the outset of these reasons, this is the largest and most significant contravention of Pt 3–1 of the FWA (or its predecessor provisions) in over 120 years. Certainly, insofar as my research has discovered, the quantum of the penalty vastly exceeds any other penalty recovered by a common informer.
Where the usual order has been made, the quantum payable pursuant to the order has been relatively modest and not wholly disproportionate with the legal costs and expenses likely incurred. This can be seen from the several examples Qantas helpfully collected and provided to the Court:
(1)in Plancor the Industrial Relations Court of South Australia imposed a total penalty of $19,000; the Full Court found that the amount was not appropriate and remitted the matter to determine the appropriate penalties (at 372 [47] per Gray J and 379 [72] per Branson and Lander JJ);
(2)in Sayed the penalties imposed totalled $45,000 (at 338 [3] per Tracey, Barker and Katzmann JJ);
(3)in Botany Cranes the penalties imposed totalled $552,500 (at 498 [221]–[225], 499 [229], 500 [232] per Bromberg, Moshinsky and Bromwich JJ);
(4)in Construction, Forestry Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 the penalty imposed was $50,000 (at [102] per Reeves J);
(5)in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 3) [2018] FCA 1395 the penalty imposed was $30,000 (at order 1 per Wigney J);
(6)in Ramsey v Menso [2019] FCA 1273 the penalties imposed totalled $111,000 (at [4] per Collier J);
(7)in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Alleged Services Union of Australia v Kentz Pty Ltd (No 2) [2020] FCA 1073 the penalty imposed was $15,000 (at order 1 per Reeves J);
(8)in Construction, Forestry, Mining and Energy Union v Melbourne Precast Nominees Pty Ltd (No 3) [2020] FCA 1309 the penalties imposed totalled $70,000 (at orders 1–3 per O’Callaghan J);
(9)in Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992 the penalties imposed totalled $190,000 (at orders 1–5 per Wigney J);
(10)in Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 the penalties imposed totalled $93,000 (at orders 1–5 per Katzmann J);
(11)in Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2023] FCA 104 the penalties imposed totalled $70,000 (at orders 1–2 per Bromberg J);
(12)in Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd (No 2) [2024] FCA 803 the penalty totalled $80,000 (at order 8 per Colvin J);
(13)in Australian Salaried Medical Officers’ Federation v Peninsula Health (No 3) [2024] FCA 1255 the penalties imposed totalled $316,260 (at orders 8–14 per Bromberg J); and
(14)in Construction, Forestry, Maritime, Mining and Energy Union v Qube Ports Pty Ltd [2025] FCA 208 the penalties imposed totalled $71,820 (at orders 2–5 per Feutrill J).
Given the present extraordinary context, it is appropriate to return to first principles and examine the underlying rationale of the usual order.
In Botany Cranes, Bromberg, Moshinsky and Bromwich JJ explained (at [235] 500–501) that the usual order:
… tends to encourage a “common informer” to police the relevant legislation (see Sayed at [87], [92] and [121]). Furthermore, the Full Court [in Sayed] endorsed the observations made by Gray J in Plancor at [42] and [45] that the “usual order” is “not regarded as compensatory in any way” and that there is no suggestion that the legislative intention behind the power to order payment of a penalty to an organisation or person was compensatory.
Although I generally accept the submissions of the Union as to both the rationale of the order and, more particularly, as to how the cases have considered the issue of a windfall, it is notable that the rejection of the importance of this notion, endorsed in Botany Cranes, arose in circumstances where the penalty amounts in Sayed and Plancor did not constitute an amount approaching a windfall of the kind potentially available if the current penalty was paid to the Union (or even a relatively modest proportion of it). Moreover, given the size of the penalty in the present case, one would think it would be unnecessary to pay the full amount to the Union in order to provide a general incentive to either the Union or other potential common informers to police obligations under the FWA.
After all, there are windfalls, and then there are windfalls.
Prior to Botany Cranes, in Plancor, Branson and Lander JJ, observed (at 379 [69]):
We understand a ‘windfall’ in this context to involve an unexpected and relatively large financial benefit. Within an organisation such as the respondent, the true cost of bringing a legal proceeding is likely to prove substantial if the time of all staff involved is appropriately accounted for and other costs, possibly including overheads, identified. Before a penalty could constitute a ‘windfall’ in the relevant sense it would need to exceed the total amount of that cost by a significant margin.
(Emphasis added)
This is such a case and involves a margin that exceeds, by a vast extent, the sort of margin contemplated by their Honours. As I have said more than once, this is a unique case.
So where does that leave us in making the discretionary order under s 546(3), when I accept that generally, the discretion would be exercised in favour of the person responsible for bringing the case?
III Payment to the Union Justified
The following factors militate strongly in favour of a substantial part of the penalty being paid to the Union:
(1)an arm of the executive government did not show any interest in investigating or prosecuting Qantas, and the Union, as a common informer, has alone borne the burden of prosecuting this litigation at first instance and on appeal;
(2)but for the Union commencing and prosecuting, Qantas’ contravening conduct would never have been exposed and it would never have been held to account for its unlawful conduct; hence the Union has brought to the attention of the Court a substantial and significant transgression of a public obligation by a powerful and substantial employer: see CEPU v QR Limited (No 2) (at [82] per Logan J);
(3)the risks of the litigation are best assessed ex ante and without the distortion of hindsight bias – here, the risk was of significance in three ways: (a) success in the litigation on the merits, particularly before discovery, was far from assured (see [212]–[214] above); (b) the litigation was to be commenced against a well-resourced employer with substantial assets and financial resources at its disposal and, given the stakes, would have been anticipated to spend vast legal fees to defend its position; and (c) the drain of the Union’s resources by way of legal and related costs was reasonably anticipated to be highly significant;
(4)looked at ex post, the litigation has proven to be hard fought, and its prosecution has required not only the expenditure of significant resources but determination and skill; and
(5)the payment of a penalty to the Union, particularly a significant sum, would strongly incentivise it and other trade unions to bring prosecutions under the FWA, particularly against employers who have extensive resources to defend their position and interests; this may well operate to enhance the enforcement of the legislative scheme effected by the FWA.
Additionally, subject to a class of proposed recipients discussed below, there is no reason why it would serve to better advance the objects of the FWA or, more generally, be a more appropriate exercise of discretion, to pay a part of the penalty to another identified recipient.
Certainly, the Commonwealth assumed no burden in pursuing Qantas’ contraventions, it did nothing to initiate proceedings against Qantas in relation to the contravening conduct (notwithstanding the Fair Work Ombudsman had standing under s 539 of the FWA). Neither the Commonwealth nor any executive government agency played a part in the proceeding at all. Further, despite the Ombudsman having an array of powers to investigate under Div 3 of Pt 5–2, no pre-litigation investigatory action was undertaken. In these circumstances, any payment to the Commonwealth would amount to a reflex wrongly based on orders made in favour of the Commonwealth in pecuniary penalty type proceedings generally (when the Commonwealth or an agency of the Commonwealth is the moving party). Its only perceived justification is the instinctive reaction that to proceed otherwise would result in the Union simply receiving too much money. It seems unsound to allow this visceral reaction to be determinative in the exercise of the discretion.
Nor is there any basis to make a payment to any other organisation registered under the FWRO Act.
Analogies have their obvious limitations, but a dominating concern about the quantum to be paid to the Union at the conclusion of this case is in some ways reminiscent of similar concerns sometimes expressed at settlement approvals in class actions when large payments are proposed to be made to a litigation funder.
In Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289, some objections were received to the payment of what I described (at [52]) as the “extraordinarily large amount of money that is proposed to be paid to the funder”. Among other reasons, the payment was ultimately approved because:
(1)although the sum proposed to be paid “was large in absolute terms”, this was a function of the size of the dispute and the large settlement achieved. Further, I emphasised that the “litigation could never have proceeded without funding” and “[b]ut for the funder accepting a significant risk, the group members’ claims would never have been vindicated” (at [53]);
(2)there was “a real danger of hindsight bias” and to “look back from where we are now and determine whether the common enterprise was likely to yield success when it was first conceived, creates real challenges”, particularly because when “these cases were commenced, they raised complex issues as to liability” (at [54]);
(3)the evidence established “that other funders were not interested in taking on these cases, nor were they interested in taking on a proportionate share of the funding risk in exchange for part of the consideration provided by group members. Just because the funder’s ship has come in, it does not seem to me to be a principled basis for changing the bounty, the terms of which were struck when the voyage commenced” (at [55]); and
(4)the perceived problem with “the amount paid to the funder in this case is not its proportion to the overall settlement sum, but its sheer size” and “just because these cases have been successful, and the return has been handsome, it does not mean that the funder’s business has been successful in other cases where the risks inherent in litigation funding have materialised. It is all very well focussing on the successful cases, but any fair assessment of reasonable returns must be seen in the context that the risks of litigation funding sometimes come home to roost” (at [56]).
Adapting these observations to the present circumstances is imperfect, particularly given the amount proposed to be paid to the funder reflected a bargain. But it is notable that: (a) this case would never have been brought without the Union and it did have the beneficial result of establishing a breach and providing some compensation to many; (b) looking at the case now, after it has safely been concluded, is very different from assessing the risks of the litigation when it was about to commence; and (c) it does not assist the enhancement or enforcement of the FWA to only incentivise common informers to be “flat track bullies”, that is, to only bring proceedings where the risks are perceived to be minimal or only against those without extensive resources to defend their position and interests.
This last point seems to me to be of importance and is worth elaboration. It is all well and good to enforce the law against those from whom relief is easily obtained or against those with finite resources preventing prolonged resistance. It is obviously simplistic to say the bigger the company, the bigger the employer; but large corporations with significant resources and access to an array of specialist industrial lawyers are often large employers. It is a formidable prospect to spend public funds taking on a fight against such a corporation, even if it was thought there were reasonable prospects of success. Although FWA regulatory proceedings are brought in what is sometimes inaccurately called a “no costs jurisdiction”, it is still no doubt easier for somebody having to husband limited resources to decide to bring a prosecution against alleged contravenors where the prospect of prolonged disputation and wasted costs is lower. Industrial organisations, for a variety of reasons, may have a greater appetite for risk. Payment of a significant portion of the penalty to a common informer might increase the detection and prosecution of future contravening conduct by very large employers.

Given the order contemplated is not to be regarded as compensatory in any way (Botany Cranes (at 500–501 [235])), some guide to appropriate quantum can be achieved by focussing on the relationship between risk and reward (linked, as this concept necessarily is, to incentive). It does not strike me as intuitively wrong that greater rewards might be appropriate in circumstances of greater risk.
In all the circumstances, the payment of at least a large part of the penalty to the Union is warranted. I am satisfied such a course will facilitate and promote both specific and general deterrence. As the Union correctly submitted, it will send a message to Qantas and other well-resourced employers that “not only will they face potentially significant penalties for breaches of the [FWA], but that those penalties will be provided to trade unions to resource those unions to fulfil their statutorily accorded roles as enforcers of the [FWA] and to seek the enhancement of the terms and conditions of employment and the industrial interests of employees whom they represent”.
IV The Position of the Affected Workers
When it comes to the affected workers, the submission of the Union is that “they will be fully compensated for their individual loss and damage arising from the contravening” and that penalty amounts “are not intended to be compensatory in [sic] and there is no call for affected employees to be awarded penalties”: see Plancor (at 371 [42], 371–372 [45]) and Botany Cranes (at 501 [239]); and “they have not borne the burden of prosecuting these proceedings”.
At first glance it might be thought this submission made to benefit the Union (and in opposition to a benefit being conferred on the affected workers), creates a real difficulty. But the fact the submission is open to be properly made points to the unusual role the Union occupies in this litigation.
In Section B of the RJ, as part of the Full Court in Elliott-Carde v McDonald's Australia Limited [2023] FCAFC 162; (2023) 301 FCR 1 (at 55 [354]), and in Elliott-Carde v McDonald's Australia Limited (Stay Application) [2023] FCA 1210; (2023) 301 FCR 84 (at 113 [117]ff), I explained that although it might be thought the Union is performing a representative function, quite similar to other representative functions known to the law, “any such comparison needs to be carefully examined and not decontextualised”. I further explained that the Union is entitled to act on its own account and in its own interests (subject to the requirements of the FWRO Act) and is not acting in the conduct of this litigation as a fiduciary of any of its members or the affected workers. Further, the affected workers are not privies of the Union in any relevant respect but rather are best described as “affected third parties”: see also Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority [2024] FCA 848; (2024) 333 IR 377 (at 410 [151]ff per Colvin J).
But it is necessary to say three things about the submission of the Union as to the affected workers.
First, for reasons I explained (at [11] to [18] above), I do not accept the evidence establishes that the affected workers will necessarily be “fully compensated”. Indeed, as I have already partly explained, the whole notion I can presently reach a conclusion all affected workers will be “fully compensated” on the material before me is highly problematical.
For a start, what does “fully compensated” mean when said at such a high level of generality devoid of evidence of statistical or other analysis? As Lord Upjohn once observed: “the assessment of damages is not an exact science” (Koufos v C Czarnikow Ltd (The Heron II) [1967] 3 WLR 1491; [1969] 1 AC 350 (at 425)). Moreover, here we are not talking about a common law remedy which has been generally regarded as non-discretionary (notwithstanding the view that “rules” such as remoteness, mitigation and contributory negligence at common law “embrace unrecognised discretion”: see Prof David Wright, “Discretion and Common Law Remedies” (2002) 23 Adelaide Law Review 243 (at 250)).
I explained, in considerable detail, the principled approach to the present compensatory inquiry in Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union(No 3) [2021] FCA 348; (2021) 304 IR 280 (at 290–293 [29]–[37]). I repeated and expanded upon that analysis in the CJ (at 212–215 [63]–[79]). I will not reproduce it and will merely note its discretionary nature and the potential imprecision of the exercise: CJ (at 212 [64], [67], 215 [79]).
Here, the comparator in assessing the posited “full compensation” is, presumably, a bespoke application by an affected worker for a discretionary order under s 545(1) having regard to the individual circumstances of that affected worker: see s 545(2)(b). Needless to say, such an assessment could involve quite individualised factors, or factors only present when assessing a small subset of workers.
Properly analysed, the suggested “full compensation” figure relied upon by the Union is an aggregated amount Qantas was prepared to agree to pay, on a net present value basis, to quell each of these over 1,800 controversies without additional cost or other expense to Qantas, being an amount agreed to by the Union as being sufficient having regard to its role in this litigation. Of course, save for taking into account my findings in the LJ and CJ (to the extent relevant), I am in the dark as to whatever enquiries the Union made, what analysis it undertook, and what other factors were considered, including whatever matters it was entitled to consider by reference to its own interests (given it had no fiduciary duties to affected workers in negotiating the settlement of the claim it was entitled to bring).
Secondly, as I explained in Patrick Stevedores (at 292 [35]), the reasoning which developed as applicable to other statutory schemes that provide for compensation for breach of civil remedy provisions is applicable in the context of s 545(2)(b) of the FWA. The words “because of” (and other like formulations of a test for causation) have a well-established meaning in the context of principles of statutory compensation generally, and like wording is used elsewhere. We know, in this regard, that the application of a “but for” test has an important role as a negative criterion (in that it will usually exclude causation if not satisfied) but that it is inadequate as a comprehensive positive test. It seems to me probable that there may be expenses incurred by an affected worker that, in a simple “but for” way, have been a factual consequence of the contravening conduct and yet which are not within that range of losses that are regarded as sufficiently causally connected to fall within the range of proven recoverable loss. In this regard, it is to be recalled that when a Court is considering a claim for recoverable loss, it is not merely engaged in the factual, or historical, exercise of explaining, and calculating the financial consequences of, a sequence of events, of which the contravention forms part; rather it is attributing legal responsibility: see I & L Securities Pty Limited v HTW Valuers [2002] HCA 41; (2002) 210 CLR 109 (at 119 [26] per Gleeson CJ).
Put more simply, there may be a range of losses or expenses which would not have been incurred “but for” the contravening conduct but would not be expected to be part of a recovery under a discretionary order for statutory compensation.
By way of illustration, let us ponder the circumstances of one sacked, healthy and motivated 60-year-old man who very much wanted to continue work, had a mortgage and other living expenses to pay, a wife to support, and who still wished to provide some measure of financial support to his children. He wanted to remain a baggage handler until he was much older but cannot now secure such a role.
Perhaps by undertaking a course of vocational training, however, this fellow may be able to improve his lot by increasing his prospects of gaining employment in a quite different field. Although the training or related expenses he may incur (or may wish to incur) is not properly recoverable as statutory compensation, it is not presently evident to me that he is a less appropriate recipient of a small part of the penalty than the Union who has already been fully compensated and has separately been handsomely incentivised to act as a common informer. It is easy to imagine a range of similar circumstances.
Thirdly, although Qantas “accepts that its only interest is in the quantum of penalty that should be paid”, it has provided some assistance on the applicable principles and submitted that if “the Court were to form the view that not all of the penalty should be paid to the [Union], the Court may consider that it is appropriate to award some of the penalty to the [a]ffected [workers]”. This is disputed by the Union. Recognising the prospect that things might come to this, I raised in advance of the hearing whether the Court should appoint an amicus curiae to provide submissions as to whether some part of the penalty should be paid to specified affected workers or some related “particular person”.
V Conditions on Payment to the Union?
Consistently with my conclusion as to the approach mandated by the text of s 546(3), the Union initially submitted that it is not for the Court to “canvass or consider” the way a recipient will spend any penalties directed to be paid to it. But, in any event, the Union submitted penalties directed to be paid to the Union will be utilised for lawful and legitimate purposes including the enforcement of the norms of conduct stipulated in the FWA as detailed in the Union’s submissions.
This subtly changed. On 8 July 2025 I noted in an email to the parties:
… in the AS at [200]ff, reference is made to the [Union]’s rules set out in Part 2 dealing with the objects of the Union, which include the promotion, fostering and maintenance of the best interests of members, securing improved conditions for members, affording assistance to members in cases of industrial oppression and improving the status of members (including via training and education) and that any amount in excess of the costs incurred in dealing with and responding to the outsourcing and prosecution of these proceedings, those purposes will be lawful “and will be made within the framework provided by the TWU’s rules and the provisions of the FWRO Act”.
His Honour’s preliminary view (expressed at T110.26) was that an order for payment of any penalty to the Union “subject to conditions that the money be used in a particular way” would be beyond power (and senior counsel’s “instinctive reaction” was the same). His Honour requests the Union to confirm … whether: (a) this remains the Union’s considered position; (b) whether the purposes for which the monies the subject of the payment will be used would be a relevant consideration in considering whether it is appropriate to make any order for payment in favour of the Union; (c) whether any undertaking is proffered by the Union to use any monies paid in the way foreshadowed by its submissions and, if so, the specific terms of any proposed undertaking; and (d) whether it is open for the Court to take into account, in considering whether an order for any payment is appropriate, the proffering or non-proffering on an undertaking (and, if proffered, the terms of the proffered undertaking).
The response was provided the following day and the Union’ position was that: (a) it is not within the power conferred by s 546(3) to order a pecuniary penalty be paid to a person subject to conditions (a contention accepted above); (b) “the purposes for which a penalty may be used by a recipient may be a potentially relevant consideration” (emphasis added); and (c) it was bound by its Rules and the requirements of the FWRO Act to apply any penalty ordered to be paid to it lawfully and consistently with its Rules (including the general objects in r 2(1) and specific objects in r 2(2)) and the FWRO Act.
The Union then went on to proffer the following undertaking to the Court:
The applicant undertakes to the Court that any penalty amount ordered to be paid to it will be applied for lawful purposes in accordance with its Rules and the Fair Work (Registered Organisations) Act 2009 (Cth).
It further accepted that an undertaking of the kind proffered above, and its terms, may be “a potentially relevant consideration” and offered that should the Court consider that the proffered undertaking is inadequate or could be differently drafted, the Union “would be willing to countenance amendment”.
Upon reflection, the undertaking seems to me to be of, at best, dubious utility. It merely requires the Union to promise it will obey an aspect of the law. One might as well receive an undertaking it will not breach other legal norms.
Accordingly, I do not propose to pursue this issue further.
I ORDERS
I will make an order that pursuant to s 546(1) of the FWA, Qantas pay a pecuniary penalty in the amount of $90 million.
Despite the form of orders made in some FWA pecuniary penalty cases, I do not propose to stipulate the penalty be paid by a particular date. With respect to those who have made such a form of order, I do not consider this is the correct approach. The section authorises an order that a person pay a pecuniary penalty in an appropriate amount (s 546(1)) and the identification of the recipient of a payment of the penalty in whole or in part (s 546(3)). Section 546(4) provides that the penalty so fixed “may be recovered as a debt due to the person to whom the penalty is payable”.
Upon order for payment under s 546(3), the debt crystallises. Of course, in this case, there is no reason to think the debt will not be paid, but as matter of principle, the orders should reflect the fact that recovery can occur in default of payment by entry of judgment and then execution of that judgment. Liberty to apply should be given to the recipient to be exercised in default of payment. This would also mean that if there was tardiness, despite s 547(1), interest would then run on the sum merged in the judgment upon its entry (and not the penalty that gave rise to the debt): see s 52(1) of the FCA Act.
Having regard to all the circumstances, I consider it appropriate that an amount of the penalty in a sum of $50 million be paid to the Union.
I will reserve, for later consideration, the making of further orders for the payment of the $40 million balance of the penalty. In this regard, there are real competing interests as between the Union and the affected workers (or at least some of them) and the prospect that informed my suggestion of appointing a contradictor to the Union’s submissions has now been realised.
I propose to list the matter for a further hearing to provide for final resolution of the payment away of the balance of the penalty.
My preliminary view is that a case management hearing be held as soon as practicable, at which time I will: (a) excuse Qantas from any further participation in the hearing; (b) appoint amici curiae and solicitors to instruct them; (c) make orders for the service on the Union of a proposed final order or orders by the amici (I will assume the Union will maintain its present submission); (d) make orders for the service of any evidence; (e) consider whether an order should be made under s 545(4) of the FWA and/or s 54A of the FCA Act providing for a referee to inquire into and report upon certain issues to be specified relating to the circumstances of some or all of the affected workers; and (f) make an order under s 545(4) of the FWA providing for a notice to be sent to affected workers regarding the outcome of the penalty hearing and the process now to be undertaken by the parties and the Court.
My intention, prior to making proposed orders (a) and (b), would be to hear:
(1)from Qantas as to whether it is lawful for me to make an interim order under s 23 of the FCA Act or pursuant to the implied power of the Court, that the balance of the penalty (the sum of $40 million) be paid into an interest bearing account to be controlled by the Court until further and final s 546(3) orders are made (which would then serve to conclude the matter from the perspective of Qantas upon payment into Court); and
(2)from the Union on the question of whether they would oppose, if necessary, future orders being made under s 546(3) for payment of part of the penalty to particular persons, being the amici (and their solicitors) and any referee, in the amount of their costs. My preliminary view is that such orders would be licit despite their broadly compensatory nature (although they may prove unnecessary if those persons could be paid from interest accruing on the balance of the penalty sum, being $40 million).

I certify that the preceding three-hundred and twenty-eight (328) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.
Associate:
Dated: 18 August 2025

File number:	NSD 1309 of 2020
Judgment of:	LEE J
Date of judgment:	18 August 2025
Catchwords:	INDUSTRIAL LAW – where Qantas was previously found to have engaged in the largest ever contravention of the general protections provisions of Pt 3–1 of the Fair Work Act 2009 (Cth) – where the issue of pecuniary penalty fell to be determined – consideration of culture within Qantas where evidence of contrition is not persuasive and as to reform is mixed – the applicable law and principles governing the imposition of a pecuniary penalty considered – where the relevant considerations in determining the pecuniary penalty identified – where findings made as to each of the relevant considerations – where the quantum of the penalty determined in the amount of $90,000,000 – where the proper recipient to whom the penalty should be paid in whole or in part considered – orders made
Legislation:	Acts Interpretation Act 1901 (Cth) s 33(2A) Competition and Consumer Act 2010 (Cth) ss 18(1), 29(1)(b), 29(1)(g), 34 Conciliation and Arbitration Act 1904 (Cth) Evidence Act 1995 (Cth) ss 140(2), 191 Fair Work Act 2009 (Cth) Pts 3–1, 4, 5–2, ss 12, 173(2), 280, 236, 340, 340(1), 340(1)(a)(ii), 340(1)(b), 341, 346, 525(2)(b), 539(1), 539(2), 545, 545(1), 545(2)(b), 545(4), 546, 546(1), 546(2), 546(3), 570 Fair Work (Registered Organisations) Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 23, 33V, 54A Explanatory Memorandum, Fair Work Bill 2008 (Cth) Work Health and Safety Act 2011 (NSW) s 104(1)
Cases cited:	Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 Australian Competition and Consumer Commission v Delta (No 2) [2024] FCA 580 Australian Competition and Consumer Commission v Qantas Airways Limited [2024] FCA 1219 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Licenced Aircraft Engineers Association v Qantas Airways Limited (No 2) [2013] FCCA 1696 Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [2012] FMCA 711 Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231; (2000) 101 IR 143 Australian Salaried Medical Officers’ Federation v Peninsula Health (No 3) [2024] FCA 1255 Australian Securities and Investments Commission v GetSwift Limited (Penalty Hearing) [2023] FCA 100; (2023) 167 ACSR 178 Australian Securities and Investments Commission v Richards [2013] FCAFC 89 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 Carnie v Esanda Finance Corporation Ltd [1995] HCA 9;(1995) 182 CLR 398 Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2023] FCA 104 Commissioner of Taxation v Bogiatto (No 2) [2021] FCA 98 Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austral Ships Pty Ltd (No 2) [2024] FCA 803 Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd (No 2) [2024] FCA 803 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz Pty Ltd (No 2) [2020] FCA 1073 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Alleged Services Union of Australia v Kentz Pty Ltd (No 2) [2020] FCA 1073 Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 Construction, Forestry Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40; (2023) 297 FCR 438 Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority [2024] FCA 848; (2024) 333 IR 377 Construction, Forestry, Maritime, Mining and Energy Union v Qube Ports Pty Ltd [2025] FCA 208 Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 3) [2018] FCA 1395 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 Construction, Forestry, Mining and Energy Union v Melbourne Precast Nominees Pty Ltd (No 3) [2020] FCA 1309 Elliott-Carde v McDonald's Australia Limited (Stay Application) [2023] FCA 1210; (2023) 301 FCR 84 Elliott-Carde v McDonald's Australia Limited [2023] FCAFC 162; (2023) 301 FCR 1 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Gill v Ethicon Sàrl (No 10) [2023] FCA 228 Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232 Han v St Basil’s Homes (No 2) [2025] FCA 448 I & L Securities Pty Limited v HTW Valuers [2002] HCA 41; (2002) 210 CLR 109 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 Koufos v C Czarnikow Ltd (The Heron II) [1967] 3 WLR 1491; [1969] 1 AC 350 Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw- Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 Municipal Officers Association of Australia v City of Bayswater (1987) 22 IR 45 Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146; (2013) 221 FCR 118 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Owners of Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029 Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union(No 3) [2021] FCA 348; (2021) 304 IR 280 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2022) 282 FCR 580 Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34 Qantas Airways Ltd v Transport Workers’ Union of Australia [2023] HCA 27; (2023) 278 CLR 571 Ramsay v Menso [2019] FCA 1273 Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306 Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 SafeWork NSW v Qantas Ground Services (No 4) [2024] NSWDC 53 Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; (2016) 239 FCR 336 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 Tasfast Air Freight Pty Ltd v Mobil Oil Australia Ltd [2002] VSC 457 The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Todorovic v Waller (1981) 150 CLR 402 Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 Transport Workers’ Union of Australia v Qantas Airways Ltd (No 2) [2021] FCA 1012; (2021) 308 IR 333 Transport Workers’ Union of Australia v Qantas Airways Ltd (No 4) [2021] FCA 1602; (2021) 398 ALR 124 Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 Transport Workers’ Union of Australia v Qantas Airways Ltd [2024] FCA 1216; (2024) 334 IR 187 Transport Workers’ Union of Australia v Qantas Airways Limited (Order to Recall Witnesses) [2024] FCA 572 Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949; (2011) 220 FCR 551
Australian Law Reform Commission, Proceedings and Third-Party Litigation Funders (Report 134, December 2018) Class Actions Practice Note (GPN-CA) Wright D, ‘Discretion and Common Law Remedies’ (2002) 23 Adelaide Law Review 243
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	328
Date of hearing:	19–21 May 2025
Counsel for the applicant:	Mr N Hutley SC with Mr P Boncardo
Solicitor for the applicant:	Maurice Blackburn
Counsel for the respondent:	Mr J Gleeson SC with Mr R Dalton KC and Ms M Caristo
Solicitor for the respondent:	Herbert Smith Freehills Kramer

ORDER MADE BY:	LEE J
DATE OF ORDER:	18 AUGUST 2025