Jamsek v ZG Operations Australia Pty Ltd (No 2)

In this case, the applicant, Mr Jamsek, sought to challenge the reasonableness of the respondent’s defence of appeal under section 570(2)(b) of the Fair Work Act 2009 (Cth). The dispute arose from an earlier decision of the Full Bench of the Fair Work Commission (FWC), which had determined that the respondent was not liable to pay Mr Jamsek unpaid entitlements. The applicant argued that the respondents’ defence of appeal was unreasonable and vexatious. The case was heard in the Full Court of the Federal Court of Australia.

The central legal issue was whether the respondents’ defence of appeal was unreasonable under section 570(2)(b) of the Fair Work Act. This required the Court to consider the principles and criteria relevant to determining unreasonableness in the context of an appeal against an FWC decision. The Court had to assess whether the respondents' appeal was brought for an improper purpose, lacked a genuine expectation of success, or was otherwise vexatious or oppressive. The Court also needed to determine whether the respondents' appeal was an abuse of the Court’s process.

The Full Court of the Federal Court found that the respondents' defence of appeal was unreasonable. The Court held that the respondents had no reasonable prospect of success on the merits of the appeal and that the appeal was an abuse of the Court’s process. The Court noted that the respondents had failed to provide any evidence to support their claims and had instead relied on speculative arguments. The Court also found that the respondents had acted in bad faith by continuing to pursue the appeal despite being warned that it was likely to be unsuccessful. The Court concluded that the respondents' appeal was unreasonable and vexatious, and therefore ordered that Order 6 of the orders dated 16 July 2020 be revoked. This means that the respondents are not entitled to appeal the FWC’s decision.