Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Ltd and Anor (No.2)

The Federal Court of Australia, constituted by Judge Cameron, considered an application for costs in proceedings brought by the Construction, Forestry, Mining and Energy Union (CFMMEU) against Hume Highway Constructions Pty Ltd and another respondent. The dispute concerned allegations of breaches of the *Fair Work Act 2009* (Cth).

The central legal issue before the Court was whether the CFMMEU had instituted proceedings without reasonable cause in relation to one of its two pleaded allegations, thereby attracting an order for costs against it. The Court was required to interpret and apply the meaning of "without reasonable cause" in the context of the *Fair Work Act 2009* and the Court's general power to award costs.

Judge Cameron reasoned that the CFMMEU's first allegation, concerning a failure to provide a safe work environment, was not made without reasonable cause, as there was a sufficient evidentiary basis to support it. However, the second allegation, relating to a failure to consult regarding a change in the workplace, was found to have been brought without reasonable cause. This conclusion was based on the absence of any evidence presented by the CFMMEU to substantiate this claim, rendering it baseless from the outset. The Court applied the principle that a proceeding is instituted without reasonable cause if there is no reasonable basis for bringing the claim, even if other claims within the same proceeding might have merit.

Consequently, the Court ordered that the CFMMEU pay the respondents' costs in relation to the second allegation, as that part of the proceeding had been instituted without reasonable cause.