All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union (No 2)
[2018] FCAFC 23
•21 February 2018
FEDERAL COURT OF AUSTRALIA
All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union (No 2) [2018] FCAFC 23
Review of: All Trades Queensland Pty Limited [2016] FWC 2832
All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union and Australian Manufacturing Workers’ Union [2017] FWCFB 132
File number: QUD 92 of 2017 Judge: FLICK, BARKER AND RANGIAH JJ Date of judgment: 21 February 2018 Catchwords: INDUSTRIAL LAW – costs – whether proceedings were instituted vexatiously or without reasonable cause – no order as to costs. Legislation: Fair Work Act 2009 (Cth) ss 193(1) and 570
Fair Work (Transitional Provisionals and Consequential Amendments) Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) s 43
Fair Work (Transitional Provisions and Consequential Amendments) Regulation 2009 (Cth)
Cases cited: All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union [2017] FCAFC 189 Date of hearing: Heard on the papers Date of last submissions: 4 December 2017 (First, Second and Third Respondents)
11 December 2017 (Applicants)Registry: Queensland Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 6 Counsel for the Applicants: Mr JE Murdoch QC Solicitor for the Applicants: Herbert Smith Freehills Counsel for the First, Second and Third Respondents: Mr W Friend QC with Ms Hartigan Solicitor for the First, Second and Third Respondents: Hall Payne Lawyers Counsel for the Fourth Respondent: The Fourth Respondent filed a submitting notice, save as to costs ORDERS
QUD 92 of 2017 BETWEEN: ALL TRADES QUEENSLAND PTY LIMITED
First Applicant
QUEENSLAND MASTER BUILDERS ASSOCIATION
Second Applicant
HOUSING INDUSTRY ASSOCIATION
Third Applicant
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION (AMWU) (and another named in the Schedule)
Third Respondent
JUDGES:
FLICK, BARKER AND RANGIAH JJ
DATE OF ORDER:
21 FEBRUARY 2018
THE COURT ORDERS THAT:
1.There will be no order as to the costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
On 27 November 2017, the Full Court delivered judgment in All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union [2017] FCAFC 189, ordering that the applicants’ further amended originating application be dismissed. The respondents seek now an order that the applicants pay their costs of the application.
In their further amended originating application, the applicants sought orders quashing decisions of the Fair Work Commission and various declaratory and other orders. The issue before the Commission concerned whether the All Trades Queensland Pty Ltd Apprentice/Trainee Enterprise Agreement 2015 passed the “better off overall test” under s 193(1) of the Fair Work Act 2009 (Cth) (the FWA). The resolution of the application required the Court to determine the proper construction of provisions of the Fair Work (Transitional Provisionals and Consequential Amendments) Act 2009 (Cth) and the Fair Work (Transitional Provisions and Consequential Amendments) Regulation 2009 (Cth).
The Court’s jurisdiction under s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs is subject to s 570 of the FWA, which provides:
570 Costs only if proceedings instituted vexatiously etc.
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
…
(2) The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c)the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii)the matter arose from the same facts as the proceedings.
The respondents rely on s 570(2)(a) of the FWA, submitting that the applicants instituted the proceedings vexatiously or without reasonable cause. The respondents submit that the Court found “no merit” in the application and assert that the proceeding was always bound to fail.
The Court rejected the applicants’ construction of the relevant legislative provisions, but, contrary to the respondents’ submission, made no finding that the application had “no merit”. The proceeding involved difficult and complex legislation. As the reasons for judgment show, the respondents’ submissions as to the construction of that legislation were fairly arguable. The application was not instituted vexatiously or without reasonable cause.
There should be no order as to the costs of the application.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Barker and Rangiah. Associate:
Dated: 21 February 2018
SCHEDULE OF PARTIES
QUD 92 of 2017 Respondents
Fourth Respondent:
FAIR WORK COMMISSION
0
1
4