Groote Eylandt Mining Company Pty Ltd T/A South32 GEMCO v Construction, Forestry, Mining and Energy Union
[2016] FWCFB 3492
•31 MAY 2016
| [2016] FWCFB 3492 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Construction, Forestry, Mining and Energy Union
(C2016/2755)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 31 MAY 2016 |
Appeal against decision [[2016] FWCA 792] of Commissioner Gregory at Melbourne on 5 February 2016 in matter number AG2015/7568 – costs application.
[1] This decision arises from an application for costs, pursuant to ss.611(2)(a) and/or (b) of the Fair Work Act 2009 (the Act), by the Construction, Forestry, Mining and Energy Union (CFMEU) in relation to an appeal by Groote Eylandt Mining Company Pty Ltd T/a South 32 GEMCO (GEMCO) against a decision by Commissioner Gregory of 5 February 2016. 1 The appeal by GEMCO was brought against the inclusion of a note in paragraph 3, in accordance with s.201(2) of the Act, that the Agreement covers the CFMEU in the decision by Commissioner Gregory approving the Groote Eylandt Mining Company Enterprise Bargaining Agreement 2015 (the Agreement).
[2] In the appeal, GEMCO submitted that Commissioner Gregory erred by including the CFMEU in paragraph 3 of his decision on the basis that the CFMEU did not give GEMCO, as the employer covered by the Agreement, a copy of the written notice stating that the CFMEU wanted the Agreement to cover it before the Agreement was approved by the Commissioner, having regard to the Full Bench authority in RotoMetrics Australia Pty Ltd v Australian Manufacturing Workers’ Union (RotoMetrics)2 in relation to the construction of s.183(2) of the Act.
[3] In the appeal, we granted permission to appeal on the basis that a jurisdictional issue was raised by GEMCO and the point warranted consideration on appeal in light of RotoMetrics, dismissed the appeal and confirmed the Commissioner’s decision.
[4] In the appeal decision, we noted that it was an unusual course for the Fair Work Commission (the Commission) to reconsider a Full Bench decision3 and, although not bound, as a non-judicial body, “by the principles of stare decisis, as a matter of policy and sound administration”, the Commission has generally followed Full Bench authority on the “issues to be determined, in the absence of cogent reasons for not doing so”. 4 We also accepted that the reconsideration of Full Bench authority on the issues to be determined is a serious step to be rarely taken and only taken in relation to a decision concerning statutory construction in circumstances where the decision is patently in error or has produced unintended or irrational consequences.5
[5] For the reasons stated at paragraphs 36 to 43 of our decision in the appeal, we were satisfied that there were cogent reasons to take the rare and serious step of reconsidering the authority in RotoMetrics and apply a different construction of s.183(2) of the Act.
[6] During the course of the appeal, the CFMEU submitted that if permission to appeal was denied or the appeal was allowed and the decision confirmed, it wished to be heard on the question of costs, identifying that its costs application was made on the basis that it should have been reasonably apparent to GEMCO that its appeal application had no reasonable prospect of success (s.611(2)(b) of the Act). 6 Both GEMCO and the CFMEU consented to the determination of the CFMEU’s costs application, if pressed, on the basis of written submissions.7
[7] In its written submissions, the CFMEU indicated that it pressed its costs application, advancing it, more broadly, on the basis of ss.611(2)(a) and/or (b), specifically that the appeal was brought without reasonable cause and/or its prosecution had no reasonable prospects of success. 8
[8] Section 611of the Act provides:
“(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 ofthe 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).”
[9] In relation to the CFMEU’s costs application, GEMCO submitted that there was significant doubt as to the power of the Commission to award costs under s.611 in relation to its appeal since such costs can only be awarded in relation to an “application”. It is not necessary to address that issue in light of our disposition of the costs application, nor is it appropriate to do so, given the very limited argument advanced by GEMCO and the CFMEU on the point. In this respect, GEMCO barely argued the point. We will presume for the purpose of disposing of the CFMEU application, that there is a power of the Commission to award costs under s.611 in relation to an appeal, as is inherent in the Full Bench decision cited by the CFMEU in Adrian G Cremona (formerly trading as Frooty Fresh) v Lane. 9
[10] The appeal by GEMCO was brought on the basis that the decision by Commissioner Gregory was inconsistent with the authority in RotoMetrics and the construction of s.183(2) of the Act adopted and applied in that Full Bench decision. Whilst the CFMEU believed, and put to GEMCO in advance of the appeal, that it was inevitable that the appeal would fail, either on the basis that (a) leave to appeal would be refused; (b) RotoMetrics would be distinguished; or (c) (as ultimately occurred) RotoMetrics would not be followed, GEMCO could have reasonably presumed that its appeal had a significant prospect of success given RotoMetrics and the longstanding approach of the Commission to the reconsideration of Full Bench decisions.
[11] In circumstances where the decision to dismiss the GEMCO appeal required the taking of the rare and unusual step of reconsidering earlier Full Bench authority, we are not persuaded that the appeal by GEMCO was instituted without reasonable cause or that the prosecution of the appeal had no reasonable prospects of success.
[12] The CFMEU’s application for an order for costs in respect of the appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Final written submissions:
Construction, Forestry, Mining and Energy Union submissions on costs – 12 May 2016.
Groote Eylandt Mining Company submissions on costs – 19 May 2016.
Construction, Forestry, Mining and Energy Union reply submissions on costs – 27 May 2016.
1 [2016] FWCA 792.
2 (2011) 212 IR 373.
3 Australian Nursing Federation v Alcheringa Hostel Inc, (2004) 134 IR 446, at p. 457.
4 [2016] FWCFB 2432, at para 28. See also Cetin v Ripon Pty Ltd (t/as Parkview Hotel), (2003) 127 IR 205, at p. 214. See also Re Queensland v Construction, Forestry, Mining and Energy Union, Section 111AAA application of the Workplace Relations Act 1996, (1998) 86 IR 216.
5 [2016] FWCFB 2432, at para 29. See also Telstra Corporation Ltd v Treloar (2000) 102 FCR 595, at para 28.
6 [2016] FWCFB 2432, at para 57.
7 [2016] FWCFB 2432, at para 58.
8 Construction, Forestry, Mining and Energy Union submissions of 12 May 2016.
9 [2011] FWAFB 6984, at paras 10 and 27. In the other decision referred to by the CFMEU, Armstrong
v Taxation Management Services Pty Ltd ATF TMS,[2016] FWCFB 1179, costs were awarded pursuant to s.400A of the Act, with the Full Bench finding it was unnecessary to determine whether or not costs should be paid pursuant to s.611.
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