Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2)

The Federal Court of Australia, presided over by Justice Pagone, addressed the matter of Construction, Forestry, Mining and Energy Union versus Corinthian Industries (Australia) Pty Ltd, in which Corinthian sought reimbursement for costs incurred from the Union abandoning two claims at trial. The Union's initial claims were that Corinthian had taken impermissible adverse action against employees by not providing them with gift vouchers due to their participation in strike action, and also that they had not received the gift vouchers because they were members of the Union. Corinthian contended that the claims were instituted without reasonable cause and that it should be awarded its costs under Section 570(2)(a) of the Fair Work Act 2009 (Cth). Corinthian also argued that the Union's unreasonable act or omission caused it to incur the costs under Section 570(2)(b) of the Fair Work Act 2009 (Cth).

The court found that Corinthian had not met the high threshold required for costs to be awarded under Section 570(2)(a) of the Fair Work Act 2009 (Cth). The court held that the Union could have reasonably believed that one of the reasons for Corinthian's decision not to grant gift vouchers was because the employees were members of the Union. Additionally, the claim for costs under Section 570(2)(b) was also not made out as the Union's failure to abandon the claim in relation to the Canning Vale and Regency Park employees at an earlier time was not unreasonable in the context of the whole of the claims. The court concluded that it would not award costs under Section 570(2)(a) or (b) as the costs relating exclusively to the abandoned claims were relatively insignificant, and there was no evidence to justify an award of costs for any meaningful percentage of the proceeding taken up by the abandoned claims.