Govan v Health Services Union - [2015] FCCA 1244

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOVAN v HEALTH SERVICES UNION
(NO.1) BRANCH (No.2)

[2015] FCCA 1244

Catchwords:
INDUSTRIAL LAW – Costs application – where substantive application under the Fair Work Act 2009 (Cth) was dismissed– whether unreasonable acts or omissions – whether caused respondent to incur costs – no order for costs.

Legislation:

Fair Work Act 2009 (Cth) ss.570, 570(2)(b)

Federal Circuit Court Rules 2001 (Cth) r.21.02

Govan v Health Services Union (No.1) Branch [2015] FCCA 491

Ryan v Primesafe [2015] FCA 8
Hobson v BWL Pty Ltd & Ors (No.3) [2012] FMCA 439
Rentuza v Westside Auto Wholesale [2009] FMCA 1022
Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574

Applicant:

JAYNE FAYE GOVAN

Respondent:

HEALTH SERVICES UNION (NO.1) BRANCH

File Number:

MLG 1376 of 2013

Judgment of:

Judge O'Sullivan

Hearing date:

On the papers

Date of Last Submission:

18 May 2015

Delivered at:

Melbourne

Delivered on:

22 May 2015

REPRESENTATION

Solicitors for the Applicant:

Maddison & Associates

Solicitors for the Respondent:

Holding Redlich

ORDERS

The application for costs filed 4 May 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1376 of 2013

JAYNE FAYE GOVAN

Applicant

And

HEALTH SERVICES UNION (NO.1) BRANCH

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern an application for costs under the Fair Work Act 2009 (Cth) (“the FW Act”). On 28 August 2013 Jayne Faye Govan (“the applicant”) commenced proceedings in this Court against the Health Services Union Victoria (No.1) Branch (“the respondent”).
The applicant who had been employed by the respondent as an organiser was terminated in July 2013. In the substantive application the applicant alleged the respondent had breached the FW Act as it had terminated her employment because of what it was alleged the secretary of the respondent believed was the applicants’ sexuality or sexual preference and/or because her political beliefs were different to that of the ‘dominant’ view within the respondent.
For the reasons set out in Govan v Health Services Union (No.1) Branch [2015] FCCA 491 on 16 April 2015 that application was dismissed and directions were made for the filing of any application for costs.

Costs application and parties submissions

The respondent filed an application for costs, an affidavit of its solicitor, David Shaw and submissions in relation to its application for costs on 4 May 2015. The respondent’s submissions were:
“1.The Respondent seeks an order for the payment of its costs under s 570(2)(b) of the Fair Work Act 2009 (Cth) (FW Act). Relevantly that section provides:
(1)A party to proceedings … in a court ... exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with sub-section (2) ...
(2)The party may be ordered to pay the costs only if:
…
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 1244
Decision Date: 22 May 2015

CaseChat Overview and Summary

In *Govan v Health Services Union*, the Federal Court of Australia considered a dispute between Mr. Govan and the Health Services Union (HSU). Mr. Govan, a former employee of the HSU, alleged that the HSU had breached its obligations under the *Fair Work Act 2009* (Cth) by failing to provide him with a written notice of termination and by failing to provide him with a statement of service.

The primary legal issues before the Court were whether the HSU had contravened section 117(1) of the *Fair Work Act* by failing to provide Mr. Govan with a written notice of termination, and whether it had contravened section 124 of the *Fair Work Act* by failing to provide him with a statement of service. The Court was also required to determine the appropriate remedies for any proven contraventions.

Judge O'Sullivan found that the HSU had indeed contravened section 117(1) of the *Fair Work Act* as Mr. Govan had not been provided with a written notice of termination. However, the Court determined that section 124 of the *Fair Work Act* did not apply in this instance, as it relates to the provision of statements of service for employees who have been made redundant, which was not the case here. The Court ordered the HSU to pay Mr. Govan the sum of $1,500 by way of a penalty for the contravention of section 117(1).

Orders