Todd Randell v Ultimate Fire Protection Pty Ltd

[2011] FWA 2124

[2011] FWA 2124

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Todd Randell
v
Ultimate Fire Protection Pty Ltd
(C2011/3273)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 13 APRIL 2011

Application for payment of costs under s.611.

[1] This decision relates to an application made by Ultimate Fire Protection Pty Ltd (the Company) seeking an order for costs against Mr Todd Randell (the Applicant) in relation to proceedings instituted against the Company pursuant to s.365 of the Fair Work Act 2009 (the Act).

[2] The background to the matter is as follows. On 8 February 2011 an application was filed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division Victorian Divisional Branch (CEPU) on behalf of the Applicant requesting Fair Work Australia (FWA) to deal with a general protections dispute pursuant to s.365 of the Act. It was alleged that the Company had dismissed the Applicant in circumstances which involved contraventions of Part 3-1 of the Act.

[3] The matter came before me for conference on 21 February 2011. In the conference, the Applicant was represented by Mr McCarney of the CEPU and the Company was, with permission, represented by Ms Pendlebury, solicitor.

[4] At the conclusion of the conference, I indicated to the parties that I was satisfied that all reasonable attempts to resolve the dispute had been, and were likely to be, unsuccessful and that accordingly a certificate would be issued pursuant to s.369 of the Act.

[5] A certificate under s.369 was issued on 23 February 2011.

[6] On 11 March 2011 the application for costs was made by the Company. The grounds for the application were that the s.365 proceedings in FWA were commenced vexatiously and without reasonable cause and that it should have been apparent that the application had no reasonable prospects of success.

[7] The application for costs was pursued under s.611 which provides as follows:

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before FWA.

(2) However, FWA may order a person (the first person) to bear some or all of the costs of another person in relation to an application to FWA if:

(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) FWA 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: FWA can also order costs under sections 376, 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).

[8] Section 377 sets the time limits within which applications for costs orders in relation to proceedings under s.365 or 372 must be made. The section provides:

377 Applications for costs orders

An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after FWA finishes dealing with the dispute.

[9] In the proceedings, submissions were presented by Mr Murphy, of counsel, for the Company and by Mr Sivaraman, solicitor, for the Applicant.

[10] The submissions went to issues relating to the making of the s.365 application by the Applicant with the assistance of the CEPU, the substance of the complaints made against the Company, the failure of the Applicant to attend the s.365 conference and the matters raised at the conference by the CEPU. The Company also advised that the Applicant had not made a general protections court application to the Federal Magistrates Court within the stipulated time period of 14 days in s.371 of the Act.

[11] The application for costs was made by the Company on 11 March 2011. This was 16 days after FWA issued the certificate under s.369 of the Act.

[12] It was submitted by the Company that it was not clear when FWA “finishes dealing with (a) dispute” within the meaning of s.377 of the Act such that the time period will run. The Company contended that the issue of a certificate pursuant to s.369 was ‘not determinative of the time at which FWA has finished dealing with the dispute’, and that s.369 contemplates that there may be further actions of FWA in a matter.

[13] At the conclusion of the proceedings on 29 March 2011, a decision to the following effect was given:

I have decided that I will not make any order for costs in this matter. The simple response to the application that has been made is that it has been made outside the time limit specified in section 377 of the Act. In my view the time limit would apply from the time that Fair Work Australia finishes dealing with a dispute it is empowered to deal with under section 365 of the Act. This would occur in a matter such as the present, when FWA issues a certificate that allows that matter to be prosecuted in a court. In those circumstances I do not need to go any further in relation to the consideration of the matters before me, although I would say that even if I was wrong on that point, I have very considerable doubt that in this case, the case that has been made out that the requirements of either paragraph (a) or (b) of section 611 (2) have been established.

...

But the matter falls on a more simple and jurisdictional issue and that is the application of section 377. It has been conceded in argument before me that there is no discretion that I have to extend the time limit in that section. This application is clearly made outside the 14 day period. It is a matter for the legislature whether that is an appropriate period in all the circumstances, but that is a judgment that has been made and the legislation is what we have before us. In this matter I cannot conclude other than that FWA had finished dealing with the particular dispute when the certificate was issued.

[14] Accordingly, the application for the order for costs was refused.

SENIOR DEPUTY PRESIDENT

Appearances:

J. Murphy of counsel with B. Pendlebury for Ultimate Fire Protection Pty Ltd.

G. Sivaraman, solicitor, for Todd Randall.

Hearing details:

2011
Sydney
March 29.

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