DP World Brisbane Pty Ltd v MUA

[2014] FWCFB 7890

[2014] FWCFB 7890

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
DP World Brisbane Pty Ltd and Others
v
Maritime Union of Australia, The
(C2014/3693)
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HAMBERGER	BRISBANE, 6 NOVEMBER 2014
DEPUTY PRESIDENT KOVACIC COMMISSIONER McKENNA

Appeal against decision [2014] FWC 1523 and order [PR548508] of Deputy President Booth at Sydney on 10 March 2014 in matter number C2012/1405 - Costs application.

[1] The Maritime Union of Australia (MUA) has made an application for costs in relation

to an application made by the Australian Mines and Metals Association Inc. (AMMA) to
intervene in this appeal.

[2] At 6:28pm on 11 June 2014, AMMA sent an email to the chambers of the presiding member of this Full Bench and to the other parties to the appeal indicating that it would be making an application to intervene and/or make submissions in the proceedings that were listed before the Full Bench over the following two days (the Intervention Application). AMMA indicated that the extent of its intervention/submissions would be limited to grounds 7-8 of the amended notice of appeal. The application was made by way of Form F1 Application (no specific form provided). A witness statement of Scott Barklamb, AMMA’s Executive Director - Policy and Public Affairs, was filed in support of the Intervention Application, but no written submissions were otherwise provided.

[3] At the hearing on 12 June 2014, prior to the Full Bench’s determination of AMMA’s Intervention Application, the MUA submitted that there was a reasonable apprehension of bias in relation to one member’s involvement in the determination of the Intervention Application due to that member’s involvement with the AMMA Alumni organisation and certain representations that were on AMMA’s website about the role and purpose of the organisation.

[4] The member considered the issue and, notwithstanding his view that there was no bias whatsoever, he recused himself from the matter in order to ensure the efficient conduct of the matter. As a result, the Full Bench had to be reconstituted, and the hearing was adjourned until 10 September 2014. On 8 September 2014, AMMA wrote to all parties and the presiding [2014] FWCFB 7890

member of this Full Bench to advise that it would no longer seek to intervene in the
proceedings.

[5] At the hearing of the appeal on 10 September 2014, the MUA submitted that it would be seeking costs from AMMA in relation to its Intervention Application. On 25 September 2014, further to the directions issued by Vice President Catanzariti on 11 September 2014, the MUA made submissions seeking costs from AMMA in relation to the costs of the hearing on 10 September 2014 and the costs of its written submissions on costs.

The legislation

[6] The power of the Fair Work Commission (the Commission) to order costs is set out in s.611 of the Fair Work Act 2009 (the Act) as follows:

“611	Costs
(1)	A person must bear the person’s own costs in relation to a matter before the
FWC.

(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.

Note:	The FWC can also order costs under sections 376, 400A, 401 and 780.
(3)	A person to whom an order for costs applies must not contravene a term of the
order.
Note:	This subsection is a civil remedy provision (see Part 4 1).”

[7] The MUA submits that AMMA’s Intervention Application was made without reasonable cause or, in the alternative, that it should have been reasonably apparent to AMMA that its application had no reasonable prospect of success. The MUA submitted that factors including the following support a finding to this effect:

1.   The Intervention Application was made late and was not supported by written submissions. This would have disrupted the orderly process by which the other parties and the Transport Workers’ Union of Australia as intervener had participated in the proceedings.

2.    AMMA relied on the ramifications of drug testing for occupational health and safety obligations in its Intervention Application. In Endeavour Energy v Communications,

Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services

[2014] FWCFB 7890

Union of Australia [2012] FWAFB 4998, the Full Bench refused permission to appeal

on such grounds. As this ground was not an argument of the appellant in this matter and had previously been rejected by a Full Bench as a basis for permission to appeal, AMMA’s Intervention Application had no reasonable or substantive prospect of success.

3.   The matter did not, and could not,set a general precedent for the method of drug testing. Both parties to the appeal and the intervener all argued that the case needed to be decided on its own facts and there was no suggestion that the decision of Deputy President Booth at first instance was in conflict with other authorities of the Commission.

4.   The Intervention Application, and its supporting witness statement, provided no material to suggest that AMMA had any greater basis than any other employer or employee to be involved in an argument about the question of the method of drug testing.

5.   The belated withdrawal of Intervention Application was a recognition of the inevitable—that the application was destined to fail.

[8] In response, AMMA submitted that its Intervention Application was in accordance with standard convention within the Commission. It was further submitted that AMMA clearly outlined the limited nature of its Intervention Application in its correspondence to the parties and the Commission, and in its Form F1. AMMA also made submissions that it had not been given notice that the Intervention Application would be opposed.

[9] AMMA submitted that it made the Intervention Application with reasonable cause and that the application had reasonable prospects of success, and rejected the MUA’s assertions that AMMA’s actions caused the MUA to incur costs as it was the MUA’s actions in making an application of reasonable apprehension of bias that caused the proceedings to be adjourned.

[10] In its reply submissions, the MUA submitted that the grounds of appeal on which AMMA sought to provide submissions (in relation to the Deputy President’s ruling that the appellant’s policy was unjust and unreasonable) were “the epitome” of the MUA’s primary submission that the matter did not and could not set a general precedent for the method of drug testing.

Conclusion

[11] Having considered the submissions of both parties, we are not satisfied that the Intervention Application was made without reasonable cause or that it had no reasonable prospect of success. We are satisfied that there was an arguable basis for the Intervention Application[1]. The lack of written submissions in support of the application is not sufficient, in the circumstances, to support a finding that the application was made without reasonable cause or that it had no reasonable prospect of success. Further, we are not satisfied that the limited nature of the matters AMMA indicated it would seek to address in the appeal means that the Intervention Application was destined to fail.

[2014] FWCFB 7890

[1]Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd [2010] FWAFB 6021; (2010) 198 IR 360

[12] As we are not satisfied that any of the factors set out in s.611(2) of the Act have been

made out, the legislative presumption in s.611(1) of the Act will prevail and the parties will
bear their own costs.

[13]      The MUA’s costs application is dismissed.

VICE PRESIDENT

Final written submissions:

The Maritime Union of Australia, 14 October 2014.

Australian Mines and Metals Association Inc, 8 October 2014.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR557463>

[2]-[5].