Construction, Forestry, Mining and Energy Union v Civil, Energy & Mining Services Pty Ltd T/A CEM Services Pty Ltd
[2014] FWCFB 5708
•26 AUGUST 2014
| [2014] FWCFB 5708 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Civil, Energy & Mining Services Pty Ltd T/A CEM Services Pty Ltd
(C2014/935)
VICE PRESIDENT CATANZARITI | SYDNEY, 26 AUGUST 2014 |
Appeal against decision [2014] FWCA 3145 of Senior Deputy President Hamberger at Sydney on 14 May 2014 in matter number AG2014/1055.
[1] This is an appeal by the Construction, Forestry, Mining and Energy Union (the CFMEU) against a decision 1 (Decision) of Senior Deputy President Hamberger in which the Senior Deputy President approved an enterprise agreement known as the CEM Services Pty Ltd - Enterprise Agreement 2014 (the Agreement).
[2] An application for a stay was heard on 10 June 2014. 2 The stay was opposed by Civil, Energy & Mining Services Pty Ltd T/A CEM Services Pty Ltd (the Respondent). It became apparent at the time of the granting of the stay order that Senior Deputy President Hamberger had been misled in a number of critical respects by the Respondent when it made its application for approval of the enterprise agreement.
[3] On 27 June 2014 the Respondent advised the Fair Work Commission (the Commission) and the CFMEU that it would not contest the CFMEU’s appeal application.
[4] The sole question of this appeal is the question of costs of the appeal, costs of the stay and the cost of the hearing of the costs application. It is of significance that once the Commission was advised that the appeal was not being contested that it notified the parties that it was open to them to have to have the appeal otherwise determined on the papers. The CFMEU indicated that it would be willing for the matter to proceed on the papers, but that it would be asserting a deliberate fraud on the part of the Respondent and that the Respondent may therefore wish for the matter to proceed to hearing. On 30 June 2014 the parties were advised that, given the nature of the allegations, the dispute would proceed to a formal hearing.
[5] Having regard to the submissions of the parties, it is clear that the Respondent opposed the stay application without reasonable justification. The Respondent’s concession on a number of matters during the stay hearing did not lead to the Respondent withdrawing its opposition to the stay. It was not for a period of two weeks that the Respondent advised the CFMEU that it would not be contesting the appeal.
[6] In these circumstances, we are of the view that this is a case where costs should be awarded. This is a case where the application of the approval of an enterprise agreement should not have been made. At the time of making the application the Respondent misled the Commission in a number of material aspects. Once an appeal had been lodged the Respondent was on notice that there was a serious question to be tried. At the time of the stay hearing, the Respondent would have been aware, based on the evidence led at the stay hearing, that the opposition to the stay application had no reasonable prospect of success. It was clear that the Respondent’s opposition was manifestly untenable and lacking in material substance.
[7] Having regard to the totality of the evidence, it is clear that the Respondent should never have made that application for approval of the enterprise agreement. In our view, this is one of the limited cases where our discretion should be exercised to make an order for costs.
[8] We are of the view that costs should be awarded in relation to the filing of the appeal, and the hearing of the stay and that those costs should be awarded on an indemnity basis. We are not persuaded that costs should be awarded for counsel’s attendance at the hearing of the substantive appeal application, as there was no necessity for an oral hearing given the material and the submissions filed by the CFMEU, and the fact that the Commission had notified the parties that it was prepared to otherwise deal with the matter on the papers. However, costs for the filing of written submissions in relation to the substantive appeal hearing will be awarded on an indemnity basis.
[9] Additionally, we are satisfied that Senior Deputy President Hamberger’s Decision approving the Agreement should be quashed and the application for approval of the Agreement should be refused.
[10] The settlement of the quantum of costs will be referred to Senior Deputy President Drake on assessment or a bill of costs in taxable form on the applicable scale.
[11] Orders will be made accordingly.
VICE PRESIDENT
Appearances:
B Docking of Counsel for the Construction, Forestry, Mining and Energy Union.
S Meehan of Counsel for Civil, Energy & Mining Services Pty Ltd T/A CEM Services Pty Ltd.
Hearing details:
2014.
Sydney:
August 20.
1 [2014] FWCA 3145.
2 See Construction, Forestry, Mining and Energy Union v Civil, Energy & Mining Services Pty Ltd T/A CEM Services Pty Ltd [2014] FWC 3951.
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