Arthena Howard v Auscor Pty Ltd
[2023] FWC 949
•24 JULY 2023
| [2023] FWC 949 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Arthena Howard
v
Auscor Pty Ltd
(C2023/136)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 24 JULY 2023 |
Costs application pursuant to s 611(2) of the Fair Work Act 2009 (Cth)
The issue and outcome
Auscor Pty Ltd (Auscor) has made an application for costs against Ms Arthena Howard in relation to an application instituted by Ms Howard under s 739 of the Fair Work Act 2009 (Cth) (the Act). The costs application, as pressed, is made pursuant to s 611(2) of the Act, which provides:
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
On 11 January 2023, Ms Howard filed an application for the Commission to deal with a dispute under the dispute settlement procedure of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award).[1] Ms Howard had alleged that she had been an employee of Auscor from 1 January 2005 until 17 January 2022 and was therefore entitled to certain payments under the Award and the National Employment Standards (NES). It was Auscor’s position that for the relevant period, it had at times contracted with Ms Howard as a sole trader and at times with a trust called the Howard Discretionary Trust.
On 23 January 2023, Auscor made an application to dismiss Ms Howard’s application pursuant to s 587 of the Act and following a hearing, Ms Howard’s application was dismissed (the Decision).[2] In dismissing the application, I observed that by making her application, Ms Howard had essentially sought from the Commission a declaration that at all material times she was an employee of Auscor and was therefore entitled to her entitlements under the NES.
In the Decision, it was identified that Auscor had contended that the Commission was absent jurisdiction to deal with the dispute because, as noted, Ms Howard was not its employee whilst working for it and Ms Howard’s application concerned questions of law extraneous to a dispute under the Award or in relation to the NES.[3] Further, if Ms Howard was its employee, which Auscor did not concede, the following issues arose:
a) the dispute was not raised when Ms Howard was in its employ (Ms Howard’s application having been made some 11 months after having concluded her work with Auscor);
b) the dispute resolution process under the Award was not followed; and
c) the matter did not arise under the Award.[4]
According to Auscor, I gave three independent reasons for dismissing the application.[5] Those were that the Commission had no jurisdiction because:
a) the dispute did not relate to a matter under the Award or in relation to the NES for the purpose of clause 43 of the Award;
b) the dispute was raised after Ms Howard concluded working for Auscor (Reason 2); and
c) prior to the referral of the dispute to this Commission, the steps in the dispute resolution procedure had not been complied with (Reason 3).
Aucsor now contends that Ms Howard instituted her application in circumstances where:
a) Reason 2 and Reason 3 ought to have been plainly obvious to Ms Howard at the time she filed her application;
b) Reason 2 and Reason 3 were expressly pointed out to Ms Howard in correspondence[6] to Ms Howard’s paid agent before Ms Howard filed her application; and
c) before Ms Howard filed her application, she was placed on notice that Auscor reserved the right to seek costs in the unfortunate event that she filed her application.
Relying upon s 611(2)(a) of the Act, Auscor submits that Ms Howard’s application was made ‘without reasonable cause’ within the meaning of s 611(2)(a) of the Act.
In respect to Reason 2, Auscor argues that despite having been informed in correspondence from its lawyers that an ex-employee could not raise a dispute (and it also being obvious), Ms Howard filed her application with the Commission advancing her case on the basis that she had been an employee from 1 January 2005 until 17 January 2022, and that she had raised a dispute with Auscor, by a dispute notice, purportedly issued on 19 December 2022 (albeit she was not an employee at that time).
As to Reason 3, Auscor observes that the dispute resolution steps having not been followed was plainly in Ms Howard’s knowledge when Ms Howard filed her application and therefore it ought to have been obvious to Ms Howard, from the plain language of clause 43 of the Award and from the correspondence from Auscor’s solicitors, that a dispute could not progress to the Commission unless the steps had been followed.
Auscor further submits that Ms Howard’s application had ‘no reasonable prospect of success’ within the meaning of s 611(2)(b) because at the time of making her application, it ought to have been reasonably apparent to Ms Howard that there was no reasonable prospect of success because:
a) even on her own case, Ms Howard was not an employee at the time she initiated the dispute (Reason 2); and
b) Ms Howard knew she had not followed the steps in the dispute resolution procedure (Reason 3).
In the absence of any objection to the contrary and having considered the materials filed, I considered it appropriate for the Commission to determine the application on the papers.
Background
It is uncontroversial that prior to bringing the application under s 739 of the Act, Ms Howard had pursued Auscor in the Industrial Magistrates Court of Western Australia (IMC) alleging that she had been employed by Auscor from January 2005 until 17 January 2022, and had been underpaid certain entitlements including annual leave, long service leave, public holidays, and notice. The IMC had dismissed Ms Howard’s claim purportedly on the basis that Ms Howard had failed to comply with court orders to provide certain documents.
In respect to the application under s 739 of the Act, the basic facts in this matter may be summarised as follows.
By letter of 23 December 2022, the legal representative of the Auscor wrote to the paid agent of Ms Howard. Briefly stated, the letter responded to the proposed application under s 739 noting:
a) that on 14 December 2022, Ms Howard wrote to Auscor’s legal representative indicating her intentions to serve a ‘Dispute Notice’ and to freshly bring the same matter (the IMC claim) before the Commission;
b) in response, on 15 December 2022, Auscor’s legal representative wrote to Ms Howard setting out:
i.such application would be an abuse of process;
ii.the ‘Dispute Notice’ could only be brought by an employee and there were no circumstances under which Ms Howard could be an employee given she says her employment terminated on 17 January 2022;
c) on 19 December 2022, Ms Howard’s paid agent sent a document directly to Auscor purporting to be a ‘notice of conferral’ and referring to an apparent dispute about the same issues raised in the dismissed IMC matter;
d) Auscor considered that the ‘conferral notice’ was invalid and was under no obligation to confer with Ms Howard regarding matters in the notice because:
i.the stated intention of serving it with the Dispute Notice was to bring a dispute before the Commission when the dispute had already been dismissed by the IMC and such conduct was an abuse of process;
ii.Ms Howard had never been Auscor’s employee;
iii.Ms Howard was not covered by the Award;
iv.even if Ms Howard had been an employee of Auscor from 2005 until 17 January 2022 (which was denied), the dispute resolution provisions of the Award could not be enlivened because no dispute was ever raised until after 17 January 2022 – noting that both parties agreed that Ms Howard was not an employee of Auscor after that date;
v.the first occasion Auscor was notified of the dispute or had any opportunity to respond was upon service of Ms Howard’s application to the IMC, being shortly after 25 January 2022;
vi.whilst the notice of conferral states that on 17 January 2022 Ms Howard met with Mr Mike McCoy, Director of Auscor, to discuss a better job offer and Auscor’s apparent requirement to pay her long service leave and Mr McCoy is said to have refused to acknowledge the entitlement to long service leave and thereafter terminated Ms Howard’s employment, Auscor states the discussion never occurred; and
vii.regarding the purported discussion on 17 January 2022 between Ms Howard and Mr McCoy, Auscor observes that the allegations were raised in response to comments made in its letter of 14 December 2022, where it was pointed out that someone who is not an employee could not commence a dispute under the relevant provisions of the Award and this was now Ms Howard’s attempt to enliven the jurisdiction of the Commission to re-hear the dismissed IMC matter on the basis that Ms Howard now argued that the dispute was raised before the end of Ms Howard’s engagement with Auscor; and
e) the dispute resolution procedure in the Award had not been complied with.
Notwithstanding Auscor’s letter of 23 December 2022, on 11 January 2023, Ms Howard filed her application for the Commission to deal with a dispute under the dispute settlement procedure in the Award. The application was unable to be resolved at private conference and in receipt of Auscor’s application to dismiss Ms Howard’s application, the matter proceeded to hearing.
On 27 February 2023, I handed down my Decision. My first consideration was the complaint that the application concerned a question of law extraneous to the Award and the NES. At paragraphs [20]–[21] of my Decision, I concluded:
[20] As was said by the Deputy President in APESMA v Holden, ‘[i]n the present case, the disputed matter concerns the application of the common law of Australia to facts that existed in the distant past’. Whilst perhaps not so distant, the observation remains apposite. The dispute between Ms Howard and Auscor ultimately comes down to a question of law as to whether Ms Howard was an employee when working for Auscor in the period of 1 January 2005 to 17 January 2022, and if she was, whether the Award was contravened.
[21] On this basis alone, the Commission has no jurisdiction to deal with Ms Howard’s dispute. However, if I am wrong on this point, for the reasons that follow, Ms Howard’s application can still not proceed.
The second issue was that Ms Howard raised the dispute under the Award after concluding her work with Auscor. Having considered the relevant case law and legislative provisions, I observed that Ms Howard had given evidence about making enquiries with Mr Mike McCoy around 2020 regarding long service leave and with Mr Kim McCoy several times over the next two years concerning the same subject matter.[7] However, I then went on to state at paragraphs [51] to [56]:
[51] Ms Howard stated that on 21 January 2021 (presumedly 21 January 2022), she went to see Workclaims Australia to seek advice on the long service leave matter. Ms Howard stated that having provided her with advice, Workclaims Australia, on her behalf, commenced the IMC Application. However, according to Ms Howard, the IMC Application was dismissed in December 2022 and no ruling was made on whether she had an entitlement to NES benefits.
[52] At hearing, Ms Howard gave evidence in cross examination that following the dismissal of the IMC Application, she decided to pursue the current application. Ms Howard acknowledged that to do so she had to initiate a dispute under the Award and did so by the issuance of the Notice. In this respect, Ms Howard’s evidence aligns with the content of her Form F10 in which she confirms that the first step that she took was to issue a notice to Auscor to confer about the dispute.
[53] The contents of the Notice have been set out at paragraph [27] of this decision. Germane to this dispute is the statement within the Notice that speaks of Ms Howard’s obligation under clause 43 of the Award:
…Mrs Howard is obliged by clause 43 of the Award to have discussions with you regarding this issue with a view to resolution without invoking the dispute resolution jurisdiction of the Fair Work Commission.
[54] The Notice is dated 19 December 2022, nearly 11 months after Ms Howard worked for Auscor. Having considered the evidence provided, I find that Ms Howard raised her dispute pursuant to clause 43 of the Award at a time when she was no longer working for Auscor. This is notwithstanding Ms Howard having asked Mr Scott McCoy about an entitlement to long service leave as detailed at paragraph [49]. In my view, asking whether there is an entitlement to long service leave does not constitute raising a dispute under a dispute resolution procedure in clause 43 of the Award.
[55] Even if one is to assume Ms Howard was employed when she says she was – that is on and before 17 January 2022 (which Auscor has denied), by the time Ms Howard raised the dispute under clause 43 of the Award (noting that Ms Howard’s case is that she raised the dispute on 19 December 2022), Ms Howard would simply have been a former employee, no longer covered by the Award and therefore without the benefit of the Award. At that time, she could neither raise a dispute under the Award nor file an application in the Commission to have a dispute under the Award dealt with.
[56] Given that no dispute arose during Ms Howard’s ‘employment’, the application cannot proceed for want of jurisdiction.
The final issue to be addressed in the Decision was Ms Howard’s non-compliance with the dispute resolution procedure. At paragraph [58] of the Decision, I identified that the evidence had not established that the dispute resolution procedure in clause 43 of the Award had been followed before the matter was referred to the Commission. On that basis, I considered that the Commission was absent jurisdiction under clause 43 unless that condition precedent to the referral had been satisfied.
Statutory framework
It is convenient to deal first with the relevant legislative provisions before turning to Ms Howard’s objections to the costs application and the merits of Auscor’s case.
The starting point in relation to costs proceedings before the Commission is that each person involved in a matter must bear their own costs. This statutory imperative is said to have derived from the policy purpose that a person is entitled to make or defend an application made under the Act without the risk that a costs order may be made against them.[8] However, there are exceptions to this approach.
The Commission’s general powers to award costs are grounded in s 611, which are, in part, recorded at the beginning of this decision.
Section 611 contains no indication of the considerations which the Commission must take into account in deciding how to exercise its discretion.[9] The discretion conferred is expressed in general, unqualified, terms.[10] In De Giusti v NSW Trains,[11] the Deputy President referred to the observation of the High Court in O’Sullivan v Farrer:
Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.[12]
The objects of the Act are set out in s 3; I do not intend to repeat them here.
Relevant, however, are ss 577 and 578 of the Act, which state respectively:
577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
The matters that therefore require determination are whether the application was made without reasonable cause and whether it should have been reasonably apparent to Ms Howard that her application had no reasonable prospect of success.
Consideration
For the following reasons, I am not prepared to conclude the application was made without reasonable cause and I am not satisfied, on the material before the Commission, that I could reasonably conclude the application had no reasonable prospect of success. It is the latter proposition that I turn to consider first.
4.1 Section 611(2)(b)
The principles applicable to the construction and application of s 611(2)(b) were summarised by the Full Bench of the Commission in Baker v Salva Resources Pty Ltd[13] as follows:
The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:
· ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test;[14] and
· a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless,[15] or so lacking in merit or substance as to be not reasonably arguable.[16]
Similarly, in Keep v Performance Automobiles Pty Ltd (Keep),[17] a Full Bench summarised the principles relevant to that subsection:
[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.
[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had ‘no reasonable prospects of success’. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996:
“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”.’ [endnotes omitted]
In Qantas Airways Ltd v Carter, the Full Bench stated that it was clear from the terms of s 611 that the point at which the Commission must determine whether or not an application was vexatious, without reasonable cause or had no reasonable prospect of success, was when the application was made.[18] That is consideration is given to whether the application was ‘made’ in circumstances where it should have been reasonably apparent, at the time the application was made, that it had no reasonable prospect of success.[19]
Auscor argues that Ms Howard’s application had ‘no reasonable prospect of success’ within the meaning of s 611(2)(b) of the Act. It states that in applying the objective test as enounced in Keep, it ought to have been reasonably apparent to Ms Howard that there was no reasonable prospect of success because: (a) even on her own case, she was not an employee at the time she initiated the dispute (Reason 2); and (b) she knew she had not followed the steps in the dispute resolution procedure (Reason 3).
In response to Reason 2, Ms Howard observed that on the authorities such as ING Administration Pty Ltd v Jajoo (Jajoo)[20] and others noted in the Decision, the ending of the working relationship need not vitiate Ms Howard’s right to access the dispute resolution procedure in the Award and an application under s 739 of the Act.
Ms Howard continued that in the Decision the history of the dispute as described by her in her Form F10 had been accurately described, acknowledging it described the initial step as her having provided a ‘notice of conferral’ dated 19 December 2022. Further, Ms Howard noted that with regard to her evidence for the hearing, she could go well beyond the ‘notice of conferral’ and in fact did, referring to her evidence that she had raised the question of her long service leave with Auscor prior to her leaving the business, and in this respect relied in part on her evidence of discussions with Messrs Mike McCoy, Scott McCoy and Kim McCoy. Ms Howard contends that such evidence clearly displayed the ‘embryonic dispute’ about a component of the NES. Accordingly, she says, it was her legal right to recall the dispute in a more formal way after the employment ended. Ms Howard added that whilst the Decision went against her in this respect, she ought not be found liable for costs. According to Ms Howard, just because an argument is lost before the Commission does not of itself trigger the costs jurisdiction.
Concerning Reason 3, Ms Howard contends that the facts known to her and her adviser at the time she raised her Form F10 were that both her and Ms Ninie Hartley had raised the issue about long service leave (a NES entitlement) on several occasions, and that Ms Howard also testified that she had raised the issue bluntly with Mr Mike McCoy when she decided to resign noting that long service leave was the point of difference – meaning, according to Ms Howard, that there was a dispute with Auscor regarding her right to long service leave. Ms Howard again emphasised that not only had she discussed long service leave with Messrs Mike McCoy, Scott McCoy and Kim McCoy, but it had formed into a dispute, albeit embryonic, whilst she worked for Auscor. According to Ms Howard, it had been open to find that she had followed the dispute resolution procedure under the Award whilst working for Auscor. Whilst the contrary was found and her application dismissed, Ms Howard contends that this did not establish that her application had no reasonable prospect of success.
At clause 43 of the Award, the dispute resolution procedure sets out that the procedure to be followed if a dispute arises about a matter under the Award or in relation to the NES. It is apparent that this dispute resolution procedure is intended to apply to those disputes which have arisen in the course of employment between parties covered by the Award (employee and employer).
It is uncontroversial that in determining the jurisdiction of the Commission, a dispute referred to the Commission under s 739 and clause 43 of the Award must be properly characterised as one over the application of the Award or the NES prior to the powers conferred by the dispute settlement provision in the Award being exercised.
There was a disagreement on the facts between the parties whether Ms Howard had met the preconditions for accessing the dispute resolution procedure under the Award. Whether Ms Howard was able to access the dispute resolution procedure, or whether there was a ‘dispute’ about a matter under the Award or in relation to the NES, were issues over which the parties had opposing views.
As observed in the Decision, the Commission is not confined to the dispute notification document when characterising the nature of the dispute. The entire factual background is relevant, including matters such as the submissions advanced and evidence tendered.[21] This approach to the characterisation of a dispute is referred to as a broad approach.[22]
I ultimately characterised the dispute as one of whether Ms Howard, when working for Auscor in the period of 1 January 2005 to 17 January 2022, was an employee or an independent contractor (in my view, the matter to which the dispute related was a question of law), and a claim for contravention of the Award and/or underpayment (in addition perhaps to others). It was not the case however that the application was manifestly untenable or groundless, or so lacking in merit or substance as to be not reasonably arguable for the following reasons.
First, Ms Howard contended she was, at the relevant time, covered by the Award, having been a former employee. To determine whether Ms Howard was an employee at the relevant time involves consideration of evidence and law. Second, there was evidence that prior to Ms Howard’s departure from Auscor she had raised an issue concerning long service leave and her entitlement to it. As to whether such evidence could culminate in a finding of there being a dispute for the purpose of clause 43 of the Award, was again dependent on a consideration of the evidence and principles of law. Third, Ms Howard was not limited to the information that had been provided in her Form F10 and was able to support her case by drawing upon further evidence. Fourth, previous decisions of this Commission have determined that in certain circumstances a former employee is able to access a dispute resolution procedure (under an enterprise agreement) if the steps in the dispute resolution procedure have been invoked prior to the termination of employment. As to whether that had occurred was a factual dispute between the parties, as was Ms Howard’s compliance with the dispute resolution procedure under the Award.
Ms Howard held the view that once the ‘notice of conferral’ had been issued in December 2022 and Auscor had refused to confer any further, the process provided in clause 43.2 of the Award had been exhausted and arguably Ms Howard could proceed to the Commission as provided in clause 43. This point was arguable in circumstances where the Commission had favoured Ms Howard’s characterisation of the dispute in addition to her evidence and contention that there was a dispute on foot for the purpose of the Award and it had been progressed accordingly. Coupled with the December 2022 ‘notice of conferral’ from her paid agent, there was at least an arguable case that the processes of clause 43 had been exhausted.
On an objective level, I am not satisfied that it should have been reasonably apparent to Ms Howard that her application had no reasonable prospect of success. Whilst the evidence in this matter did not support a conclusion that Ms Howard’s dispute was one arising under the Award and therefore had not validly invoked the jurisdiction of the Commission, on an objective level it was not manifestly untenable or groundless.
4.2 Section 611(2)(a)
Turning to s 611(2)(a), the principles concerning the interpretation and application of that section were comprehensively stated in Church v Eastern Health.[23] I adopt the summary of these principles set out by the Full Bench in Chapman v Ignis Labs Pty Ltd:
· An application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage.
· An application is not made without reasonable cause simply because the application did not succeed.
· Whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether there was no substantial prospect of success.
· If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to characterise the application as having been made without reasonable cause.
· In relation to an appeal, the question becomes whether the appeal has no substantial prospect of success. The prospect of success must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If there is a not insubstantial prospect of the appeal achieving some success, it cannot fairly be described as having been made without reasonable cause.[24]
Auscor submitted that as to Reason 2, despite it having been put to her in correspondence that an ex-employee could not raise a dispute (and it also being obvious), Ms Howard filed her application. However, as will be apparent by now, on any objective basis, Ms Howard’s success with this argument depended on the resolution in her favour of certain facts and points of law. Those points of law required the examination of s 739 of the Act, the authorities that have considered that section, and the terms of the Award. In the Decision at paragraph [23], I stated that it was clear from Jajoo and the decisions that follow it both under the Workplace Relations Act 1996 (Cth),[25] and under the Act,[26] that there is capacity for the Commission’s jurisdiction to be enlivened in a dispute involving a former employee if there is compliance with an applicable dispute settlement procedure during the employment. It is, however, observed, as it was in the Decision, that the aforementioned decisions considered the Commission’s jurisdiction in circumstances where the dispute resolution procedure arose from an enterprise agreement or certified agreement. Nevertheless, I am of the view that it could not be said that this factor rendered, on an objective basis, Ms Howard’s application as one where at the time of making her application there was no substantial prospect of success.
Regarding Reason 3, in my opinion, the points I have made at paragraphs [38]–[39] of this decision are apposite to the argument as to whether the application was made without reasonable cause. The success of the application was dependent, in part, on one or more arguable points of law with respect to the characterisation of the relationship between the parties, whether there was a dispute whilst Ms Howard worked for Auscor, and whether the dispute had been progressed in accordance with the dispute resolution procedure under the Award.
Conclusion
To conclude, I am not satisfied that s 611(2)(a) or (b) have been met and for the reasons stated, I am similarly not satisfied that Auscor has established that an award of costs is warranted. In any event, considering the matters outlined above, I do not consider that this is an appropriate case for me to exercise my discretion to award costs.
For these reasons, the application for costs made by Auscor must be dismissed. An Order[27] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] MA000010
[2] Howard v Auscor Pty Ltd[2023] FWC 272 (Decision).
[3] Ibid [3].
[4] Ibid.
[5] Ibid [58].
[6] Digital Court Book (hearing dated 13 February 2023), 14–17; Letter to Ms Howard’s agent dated 23 December 2022, [14], [20]–[24].
[7] Decision (n 2) [48].
[8] De Giusti v NSW Trains[2018] FWC 1843, [15] (De Giusti).
[9] Ibid [20].
[10] Ibid.
[11] Ibid.
[12] (1989) 168 CLR 210, 216.
[13] (2011) 211 IR 374, 376 [10].
[14] Re Lewis (2005) 142 IR 188, 191 [6].
[15] Deane v Paper Australia Pty Ltd (2003) 121 IR 362, 363 [7]–[8].
[16] Smith v Barwon Region Water Authority (2009) 187 IR 276, 287 [48].
[17] [2015] FWCFB 1956.
[18] [2013] FWCFB 1811, [20].
[19] Azad v Hammond Park Family Practice Pty Ltd[2022] FWCFB 110, [9].
[20] (2006) 158 IR 239.
[21] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Ltd (2003) 128 IR 101, 110 [47].
[22] See, eg, Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia (2016) 262 IR 83, 93 [36].
[23] (2014) 240 IR 377, 383–5 [23]–[33].
[24] [2021] FWCFB 932, [14].
[25] See, eg, Telstra Corporation Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2007) 163 IR 134; Deakin University v Rametta (2010) 196 IR 42.
[26] See, eg, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019; Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd (2017) 262 IR 122; Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619.
[27] PR764523.
Printed by authority of the Commonwealth Government Printer
<PR761276>
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