United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board
[2014] FWC 2667
•28 APRIL 2014
[2014] FWC 2667 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.611—Application for costs
United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2013/1242)
COMMISSIONER WILSON | MELBOURNE, 28 APRIL 2014 |
Application for costs, with cross-claim. Whether claim made vexatiously or without reasonable cause or had no reasonable prospect of success.
Introduction
[1] This decision concerns applications for cost orders pursuant to s.611 of the Fair Work Act 2009 (the Act) arising out of the discontinuance by the United Firefighters’ Union of Australia (UFU) of its application (the UFU Originating Application) for increases to certain allowances contained within the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operational Staff Agreement 2010 1 (MFB Operational Staff Agreement).
[2] The Metropolitan Fire and Emergency Services Board (MFB) applies for costs arising out of the discontinuance by the UFU of the Originating Application, and the UFU applies for costs arising out of the application by the MFB for costs.
[3] For the reasons set out in this decision, each of the costs claims is refused.
Background - the UFU Originating Application
[4] The UFU Originating Application was filed in the Fair Work Commission on 13 August 2013; was the subject of an initial conciliation conference before me on 24 September 2013; and was programmed for arbitration on 19 and 20 November 2013.
[5] In order to facilitate the arbitration of the UFU Originating Application the Commission issued Directions requiring each party to file and serve on the other an outline of submissions and any witness statements and documents on which it intended to rely. The UFU was required to file its material by 24 October 2013; the Metropolitan and Emergency Fire Services Board (MFB) by 7 November; and the UFU in reply by 14 November 2013.
[6] The UFU filed its material initially on Friday 25 October, with amendment on Monday 28 October, and the MFB on Friday 8 November 2013.
[7] On Friday, 15 November 2013, the UFU gave notice of withdrawal of its Originating Application (noting the UFU reply submissions were due on Thursday 14 November and the arbitration hearing was to commence on Thursday, 19 November 2013).
The respective costs claims
[8] There are two costs applications and a future costs claim indication arising out of the UFU Originating Application.
[9] The respective costs applications are as follows;
MFB Costs Application
On 19 November 2013, the MFB gave notice that it wished to be heard on the question of costs in this matter and, on 26 November it submitted an application for costs on the form provided for in the Fair Work Commission Rules, Form F6.
The MFB Costs Application refers to a single ground– that it should have been reasonably apparent to the UFU that its UFU Originating Application had no reasonable prospects of success.
Directions for the hearing and determination of the MFB Costs Application were issued on 12 December 2013.
UFU Costs Application
On 17 December 2013, the UFU filed a Form F6 seeking costs against the MFB in respect of the MFB Costs Application for the reason “that its application for costs in the matter C 2013/1242 had no reasonable prospect of success”.
This application also relies on a single ground of there being no reasonable prospect of success to the application complained of.
Directions for the hearing and determination of the UFU Costs Application were issued on 18 December 2013.
[10] In addition to these actual applications, made in accordance with the Act and the Commission’s Rules, there is a future costs claim indication by the MFB, in response to the UFU Costs Application. On 17 February 2014, the solicitors for the MFB, Corrs Chambers Westgarth, wrote to the Commission raising certain issues relating to this matter and indicating;
“In light of the above, we wish to foreshadow that in addition to the application for costs which has been made by the MFB, the MFB will also be seeking a costs order for the costs incurred by it in responding to the UFU’s costs application.”
[11] This future costs indication has not been made as an application in accordance with the Act or the Fair Work Australia Rules 2010 (which applied at the time), and accordingly I do not view it as a valid application under s.611.
The UFU Originating Application
[12] The UFU Originating Application sought to “increase the allowances in the Agreement by movements in the CPI since September 2010 when the allowances last moved.” 2 Attachment B to the UFU Originating Application set out the allowances to be varied for arbitration and the quantum sought for each.
[13] The parties agreed the following facts in preparation for the hearing of the costs claim;
“3. On 13 August 2013, the UFU made application to the Fair Work Commission (FWC) to deal with a dispute in accordance with a dispute settlement procedure by filing a Form F10 pursuant to the Fair Work Australia Rules 2010 and in reliance on s.739 of the Fair Work Act 2009 (FW Act). The Application identifies the United Firefighters’ Union of Australia, Operational Staff Agreement 2010 (the Agreement) as the relevant instrument and refers to clauses 19, 42 and Schedule 4 of the Agreement. The dispute is said to be about an increase in allowances in the Agreement (the allowances and rates are set out in Schedule 4) by movements in the CPI since September 2010.
4. Paragraph 6 of the Application states:
“Steps already taken under to (sic) dispute settlement procedure:
The UFU has written to the MFB seeking agreement to the increases, and agreement has not been forthcoming. The only step under clause 42 is to refer the matter to the Fair Work Commission for determination. This Application is that referral.”
5. The FWC issued directions on 24 September 2013 requiring the filing and service of outline of submissions by both the UFU and the MFB with a hearing scheduled for 28 and 29 November 2013 (subsequently changed at the FWC’s initiative to 19 and 20 November 2013).
6. In support of its application for an increase in allowances based on increases in the CPI, on 28 October 2013 the UFU filed an Amended Outline of Submissions.
7. The MFB filed an Outline of Submissions in Reply to the UFU’s Amended Outline of Submissions on 8 November 2013.
8. The UFU withdrew its Application following receipt of the MFB’s submissions and prior to the hearing scheduled by the FWC to commence on 19 November 2013.
9. The express terms of the withdrawal by the UFU included the following advice to the FWC:
“The UFU founded its Application on both clause 19.1 and 42.3. After consideration of the Outline of Submissions of the MFB, it appears to the UFU that it may be possible that this matter could be disposed of by FWC ruling that it did not have jurisdiction because the UFU had not followed the five steps referred to in clause 19.1, and that that is a condition precedent for the Union submitting a dispute to FWC for arbitration (see paragraph 3 of the Outline of Submissions of the MFB). The UFU rejects the correctness of this proposition, but is concerned that the parties and the Commission will spend considerable time and effort only to have the matter disposed of on a point which can be addressed by the UFU taking those steps and bringing a new application.” 3
[14] The UFU Amended Outline of Submissions for the hearing of the UFU Originating Application consists of the following, which is reproduced in full;
“1. Clause 42.3 of the agreement provides:
Any additional, new or increase of allowance above that already provided in the agreement will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.
2. It is submitted that the plain and clear meaning of clause 42.3 is that an allowance can be increased by determination of the Commission.
3. As Roe C said in [2012] FWA 1085 at [17]:
Clause 42.3 does not restrict the nature or amount of any new allowance claim and thus neither does it restrict any increase of allowance claim.
4. If there is an ambiguity or uncertainty about the interpretation (which is denied) FWC may have resort to extrinsic materials.
5. Extrinsic materials support the UFU's interpretation.
6. The same provision was in the 2002 and 2006 Agreements (clause 30.6 and 32.6 respectively).
7. In 2002 on the application for certification of the 2002 Agreement Mr Crampton for the UFU explained that the clause was intended to allow the parties to seek new or increased allowances despite the No Extra Claim clauses. The MFB did not disagree with this characterisation (see PN27-PN48 of the Transcript- copy attached).
8. Accordingly the UFU can pursue increases to allowances under this clause.
9. It can also seek the resolution of the claims through the disputes resolution clause (see [2012] FWA 1085 at [17]).
10. The monetary value of the allowances in the Agreement was set as at 30 September 2010.
11. As at the date of application of this matter the CPI had increased by 6.1 %.
12. Accordingly the value of the allowances has declined or depreciated by the amount of movement in the CPI and needs to be increased by that amount to restore their value.
13. It is not to the point that the Agreement has now passed its nominal expiry date and that negotiations for a new agreement are taking place. Experience shows that negotiations with the MFB can take a very long time with no outcome. Employees should not have an application which is permitted and envisaged under the Agreement disallowed for that reason.” 4
[15] At the same time as filing this Outline of Submissions, the UFU filed transcript of proceedings before Simmonds C. from 28 November 2002 which were in relation to the certification by the Commission of the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia Operational Staff Agreement 2002 5; and the Australian Bureau of Statistics’ Consumer Price Index, September Quarter 20136.
[16] The MFB submissions in relation to the UFU Originating Application were more extensive, arguing firstly that Clause 42.3 is not a valid source of power for the FWC to arbitrate and that the union’s application should be rejected on discretionary grounds. The MFB argued against clause 42.3 being a valid source of arbitral power since the clause is not considered a permitted matter within the meaning of s.172(1). The MFB also submitted that since the clause is not a term dealing with disputes within the meaning of s.738(b), it failed to enliven the jurisdiction of s.739(4). Further, the MFB argued that the clause is inconsistent with the scheme of the Act governing approval of enterprise agreements which requires, as at the date of approval, the Agreement being approved to contain all of the provisions which are to have effect as an enterprise agreement.
[17] Following are extracts of the clauses in the MFB Operational Staff Agreement relevant to the UFU Originating Application;
19. DISPUTE RESOLUTION
19.1. This dispute resolution process applies to all matters arising under this agreement, which the parties have agreed includes:
19.1.1. all matters for which express provision is made in this agreement; and
19.1.2. all matters pertaining to the employment relationship, whether or not express provision for any Such matter is made in this agreement; and
19.1.3. all matters pertaining to the relationship between the MFESB and UFU, whether or not express provision for any such matter is made in this agreement.
The parties agree that disputes about any such matters shall be dealt with by using the provisions in this clause.
19.2. To ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:
19.2.1. Step 1 The dispute shall be submitted by the union and/or employee(s) to the employee's immediate supervisor.
19.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.
19.2.3. Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation.
19.2.4. Steps 1 - 3 Must be concluded within a period of ten (10) consecutive days. Disputes are to be resolved at a local level wherever possible.
19.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation.
The Manager Employee Relations shall convene a meeting of the employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.
19.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA.
FWA may utilise all its powers in conciliation and arbitration to settle the dispute.
19.3. Notwithstanding the words contained in the above sub-clause, the steps of the procedure apply equally to a dispute raised by an employee, the union or Officer in Charge 19.4. While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 19.2.6, work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.
19.5. This clause shall not apply to a dispute on a Health and Safety issue.
19.6. A dispute may be submitted, notified or referred under this clause by the UFU.
19.7. A decision of FWA under this clause may be appealed. A dispute is not resolved until any such appeal is determined.
23. NO EXTRA CLAIMS
23.1. There shall be no extra claims by either party.
42. ALLOWANCES
42.1. The monetary amounts of all allowances provided for in this agreement are set out in Schedule 4.
42.2. All other work related allowances will increase by 13.5% as identified in Schedule 4 of this agreement as from the date of lodgement of the Agreement with Fair Work Australia.
42.3. Any additional, new or increase of allowance above that already provided in the agreement will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.
[18] Subclauses 42.4 - 42.15, inclusive, are not included in the above extracts; and neither is Schedule 4 which sets out various allowances and the applicable rates.
[19] The applications for costs are made under s.611 of the Act which provides the following;
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).
Submissions on the MFB Costs Application
[20] The MFB Costs Application initially referred only to s.611(2)(b) (“no reasonable prospect of success”) although that claim was later broadened in its Outline of Submissions to encompass s.611(2)(a) (application made “vexatiously or without reasonable cause”).
[21] The MFB Costs Application set out these reasons for its contention that the UFU Originating Application by the UFU had no reasonable prospect of success;
“(i) The five steps prescribed by clause 19.2 to 19.6 of the 2010 Operational Agreement (which are a condition precedent for the union submitting a dispute to FWC for arbitration under clause 19) were not followed by the UFU.
(ii) Rather than provide any evidence as to why the claim for allowances should be allowed, the UFU’s material filed in this matter does no more than present a bald assertion that an increase in the allowance is warranted because of movement in the CPI since September 2010. Despite this, the MFB was put to the cost and expense in preparing evidence, a witness statement and briefing Senior Counsel and junior counsel.
(iii) Clause 42.3 is not a source of power for FWC to arbitrate because the clause is not valid because it is not a permitted matter within the meaning of s.172(1) of the FW Act.
(iv) Clause 42.3 is invalid by reason of being inconsistent with the scheme of the Fair Work Act governing approval of enterprise agreements which requires, as at the date of approval, the Agreement being approved to contain all of the provisions which are to have effect as an enterprise agreement.
(v) Even if clause 42.3 is a permitted matter it is not a term providing a procedure for dealing with disputes within the meaning of s.738(b); of the FW Act.
(vi) Even if clause 42.3 is a permitted matter it does not enliven the Commission’s arbitral power under s.739(4).” 7
[22] The MFB outline of submissions included the following expansion of grounds and elaboration;
“8. The MFB relies upon both limbs of s.611(2) of the FW Act set out at the commencement of this costs submission.
9. Given the basis of the UFU’s withdrawal of its application relating to a matter as fundamental as compliance with the dispute settlement procedure before seeking to access the jurisdiction of the FWC, the MFB submits that the UFU’s application was instituted without reasonable cause. Further, it should have been reasonably apparent to the UFU that its application had no reasonable prospect of success for the purpose of s.611 of the FW Act in light of the UFU’s acknowledgement that the jurisdiction of the FWC for the purposes of s.739 of the FW Act has not been properly invoked.
10. The terminology in s.611 of the FW Act is similar to the terminology used in s.570 of the FW Act in relation to costs applications where courts are exercising jurisdiction under the FW Act, and so reference will be made in these costs submissions to decisions taken under these provisions in addition to decisions about costs made by the FWC and its predecessors.
11. The issue as to whether the steps of the dispute resolution procedure had been complied with, a factual question, was known at the time the UFU’s application to the FWC was made. The procedures were clearly not complied with, a fact acknowledged by the UFU as the basis of the withdrawal of its application to the FWC.” 8
[23] In addition to these contentions, the MFB put forward that the grounds of the UFU’s Originating Application are inconsistent with the submissions put by the union to the Federal Court of Australia in the matter of United Firefighters’ Union of Australia v Country Fire Authority (UFU v CFA), in which Justice Murphy issued judgement on 31 January 2014. 9 It is said that the inconsistency is to the point of it being an abuse of process.10 One issue which arose in UFU v CFA is whether or not clause 38 of the Country Fire Authority/United Firefighters’ Union of Australia, Operational Staff Enterprise Agreement11 (the CFA Operational Staff Agreement), and which is said to be in the same terms as clause 42.3 of the MFB Operational Staff Agreement12, is a stand-alone dispute settlement provision enabling the variation to existing allowances.
[24] The MFB submits that the UFU submissions in the Originating Application were jurisdictionally incompetent 13, in the sense of having no legal foundation, and relies on the distinction drawn between the pursuit of an argument that does not succeed and one that is misconceived in the sense of being incompetent. The argument is an elaboration of the decision of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No. 3)14, in which the following was noted, in relation to s.824 of the Workplace Relations Act, which enabled a Court to order costs where satisfied a party had caused costs to be incurred by another “by an unreasonable act or omission”15;
In dealing with an application for costs under s 347(1) of the Act, in Standish v University of Tasmania, Lockhart J was called on to decide whether the proceeding had been instituted “without reasonable cause”. His Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent. This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2). The prosecution of any incompetent or hopeless case can be regarded as “an unreasonable act” within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. 16
[25] The UFU submitted it its response submissions to the MFB Costs Application the following;
“4. The capacity of the UFU to seek to have an increase in an allowance arbitrated under clause 42 or previous clauses in identical terms had been accepted by the Commission in previous decisions United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board[2012] FWA 8838 at [26]; United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board[2012] FWA 1085 at [27]; Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia [2012] FWAFB 9555 at [25]; United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services BoardPR953710.
5. The UFU contends that the procedure in clause 19 has been complied with and that the procedure properly interpreted envisages appropriate disputes being dealt with at later steps including initially at Step 4.
6. The Commission has previously dealt with disputes notwithstanding that all steps in the dispute resolution process had not been followed. In Bulga Coal Management Pty Ltd and CFMEU PR922358 SDP Drake dealt with disputes notwithstanding her finding that there had been “no or no appropriate compliance” with the dispute procedures (at [43]). In Silcar Pty Ltd v AFMEPKIU[2011] FWA 1083 SDP Watson dealt with disputes notwithstanding finding that the procedure had not been complied with (at [14]).
7. The MFB and the UFU have as a matter of practice omitted steps from the dispute procedure, in particular going straight to step 4. In matter C2013/4577, MFB and UFU and Others, DP Smith dealt with a dispute and issued a decision ([2013] FWC 4617) where not all steps had been taken. The MFB told the Commission that it is common for the parties to deal with matters at Step 4 and then refer the matter to the Commission (PN59; Transcript of 4 June 2013). In agreeing with the MFB on this point, the UFU submitted there were many occasions on which the parties had escalated a matter to the Commission before the steps were taken (PN102).
8. As a matter of custom and practice even when stages 1 to 4 are followed, disputes between the UFU and the MFB are rarely progressed through stage 1 to 3 within the required 10 days.” 17
[26] The MFB submitted in reply;
“6. The position the UFU advanced in the Federal Court proceeding is incompatible with its reliance on paragraph [4] in its Submissions in Reply. In so far as the UFU’s Application under s.739 of the FW Act on 13 August 2013 relies upon sub-clause 42.3 of the Agreement, that reliance is directly inconsistent with what was submitted by the UFU to the Federal Court in April 2013 in relation to a clause in the CFA Agreement which is in the same terms as the Agreement in this matter.” 18
[27] In summary the MFB case for costs consists of five main points of contention as to why the UFU Originating Application had no reasonable prospect of success or was instituted without reasonable cause;
• the steps of clause 19 (dispute resolution procedure) were not followed;
• clause 42.3 is not a permitted matter for an enterprise agreement within the meaning of the Act;
• even if clause 42.3 is a permitted matter, it does not provide a procedure for dealing with disputes within the meaning of s.738 (b);
• clause 42.3 does not enliven the Commission’s arbitral power under s.739 (4);
• the UFU position that clause 42.3 provides power for arbitration of the matters in the UFU Originating Application is incompatible with what the union said to the Federal Court in UFU v CFA.
Submissions on the UFU Costs Application
[28] The UFU contended in its costs application that “it should have been reasonably apparent to the MFB that its application for costs in the matter C2013/1242 had no reasonable prospect of success.” 19 The UFU submitted a costs order was a matter of discretion for the Commission, even if it found the threshold test had been met of a manifestly untenable or groundless application, and that the policy of the Act was that costs would be awarded only in exceptional circumstances.20
[29] The union submits that the UFU Originating Application was not manifestly untenable or groundless and provides justification for that claim, including that the ability to make the originating application was specifically provided for in clause 42.3. When the UFU Originating Application was made, the capacity of clause 42.3 to be used as an arbitral vehicle had been accepted by the Commission, with the validity of the clause having been “implicitly accepted” 21. The UFU points to Commissioner Roe having accepted on several occasions that allowance claims could be brought forward under clause 42. In November 2012, Commissioner Roe found that:
“... the new allowances represented by the claims are within the scope of the term “any additional, new or increase of allowance above that already provided in the agreement” in Clause 42.3. Clause 42.3 provides for disputes over such claims to be determined by FWA. In respect of such claims Clause 42 acts as a disputes settlement procedure consistent with Section 186(6) of the Act.” 22
[30] The UFU’s submissions about clause 42.3 include that there has been a long history of a reserved right of private arbitration for allowances, and that such right has been enabled by a clause such as clause 42.3. In this regard it pointed to certification proceedings before Commissioner Simmonds in 2002 in which it was submitted by the union at the time that “[i]t was agreed that the allowance clause, as contained within here, would provide the right for the union to pursue other allowances by application, either new allowances or increases to allowance ...”. 23
[31] The argument was advanced that the UFU had consistently in its dealings with the MFB prefaced certain disputes as being activated by clause 42.3. In this regard, the union referred to correspondence from it to the MFB in January 2014 requesting allowances be increased by an amount, citing the provisions of clause 42.3 as authority for making the claim, but indicating that if the recipient was unable to resolve the matter, “it will be submitted to an appropriate senior as per clause 19.2.2 of the dispute resolution procedure.” 24
[32] In Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia (Vic Branch) 25, the Full Bench found that the Operational Staff Agreement’s dispute settlement clause is a clause that pertains to the relationship between employer and employee and that because the claim that was the subject of the appeal (for contributions to an income protection insurance scheme) pertained to the relationship between the MFB and the UFU, it was supported by s.172(1)(b) of the Act and clause 19.1.3 of the Operational Staff Agreement.26
[33] The UFU submits that clause 19 is also a vehicle for arbitration and that the “MFB and the UFU have as a matter of practice omitted steps from the dispute procedure, in particular going straight to step 4”. 27 In advancing the submission that the Commission has previously dealt with disputes even though the steps in the dispute resolution procedure had not been followed, the union noted previous occasions in which there has not been strict compliance with the clause,28 submitting there were many such occasions.29 Unsworn evidence was given by one of the union’s Industrial Officers that their experience has been that “even when when (sic) stages 1 to 4 are followed, disputes between the UFU and the MFB are rarely (or often not) progressed through stage 1 to 3 within the required 10 days”.30
[34] The UFU referred to instances outside of its own agreements where dispute resolution clauses had not been followed precisely, and which had not prevented proceedings before the Commission. The union cited as examples Silcar Pty Ltd v AMFEPIKU, 31 in which Watson SDP found evidence the applicant union did not comply fully with the terms of the dispute resolution procedure32 and Bulga Coal Management v CFMEU, in which Drake SDP referred a matter for conciliation after commenting that;
“[43] The application of the Dispute Resolution Clause at Bulga has a history of notifications before this Commission which indicates its application is a shambles. In conciliation I concluded that there was no or no appropriate compliance by either party.” 33
[35] The UFU further submits, in advancing the proposition the MFB Costs Application had no reasonable prospect of success, that the facts that were the basis of the UFU Originating Application were known to the MFB at the time it made its application. It also argues that, having been advised by lawyers, “[o]n an objective basis it must have been reasonably apparent to the MFB that its application had no reasonable prospects of success.” 34
[36] The MFB responded by arguing the UFU Costs Application is premature, and should be rejected on the basis it is premature, being “premised on the basis that the MFB’s application for costs in this matter will not succeed in circumstances when the MFB application has not yet been heard or determined.” 35 It contended that the withdrawal of the UFU Originating Application caused the MFB to incur considerable time, effort and cost, and that the withdrawal came only after “it acknowledged in its own correspondence that it had failed to comply with the dispute settlement procedure.”36 Further, the MFB took issue with the UFU contention that the FWC had accepted the validity and capacity of the UFU to seek to have an increase or allowance arbitrated under clause 42.37
[37] The MFB also noted in relation to the UFU’s reference to the matter of Silcar Pty Ltd v AMFEPIKU that the matter before the Commissionat the time of the decision dealt with a dispute resolution procedure in the context of proposed changes to the workplace, with a finding that the status quo provision within the dispute resolution procedure should not be disturbed 38. The MFB argues that “this is a completely different scenario” to the issue in this matter. The MFB also submits that the Full Bench has held in Alcoa Australia Rolled Products Pty Ltd v AWU & Ors39 (Alcoa Australia), within the context of the Workplace Relations Act 1996 (WR Act) “that compliance with the prescribed steps in disputes settlement procedures is a precondition to a party accessing the arbitral jurisdiction of FWC”.40
[38] It is noted, however, that the legislative base of the matter referred to by the MFB in this regard is markedly different to that in the Fair Work Act 2009. For example, s.709(1)(b) of the WR Act provided a legislative threshold for the making of an application for the Commission to conduct a dispute resolution process, with the threshold reinforced by a prohibition on the Commission which is referred to in Alcoa Australia in the following manner;
“Section 710(b) of the WR Act provides that the tribunal must refuse to conduct a dispute resolution process under Div 5 of Pt 13 of the WR Act in relation to a dispute if:
(a) the dispute is not one that, under the terms of the workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; or
(b) any of the steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have not been taken. (Emphasis added)
Alcoa maintained before the Commissioner that the steps referred to in ss 709(1)(b) and 710(b) of the WR Act had not been undertaken in respect of the applications before him.
There is nothing in the Commissioner’s reasoning to indicate that in deciding he had jurisdiction to deal with the applications of the unions he considered the matters in ss 709(1)(b) or 710(b) of the WR Act.
The Commissioner’s failure to consider the matters in ss 709(1)(b) or 710(b) of the WR Act in deciding he had jurisdiction to deal with the applications of the unions, because they concerned disputes in respect of which clause 27 of the Alcoa Agreement applied, constitutes an error of law”. 41
Consideration
[39] As set out earlier, an application for costs can be brought under s.611 of the Act. Subsection (1) provides a presumption against the ordering of costs, and sub-section (2) provides two alternative heads of claim. Paragraph (a) has relevance where the Commission is satisfied an application was made or responded to vexatiously or without reasonable cause. Paragraph (b) has relevance where the Commission is satisfied that it should have been reasonably apparent the application, or a response to the application, had no reasonable prospect of success. In relation to the applications before me;
• the MFB Costs Application is made under both s.611(2)(a) and (b) 42;
• the UFU Costs Application is made under s.611(2)(b) 43.
[40] Although the MFB Costs Application is made under both paragraphs of s.611(2), the submissions of the MFB in relation to paragraph (a) have gone to the application having been made without reasonable cause and the MFB’s submissions have not, to any meaningful extent, claimed the UFU made the application vexatiously.
[41] The FWC’s approach to s.611 has been set out by the Full Bench in Church v Eastern Health 44, which considers the context of the Fair Work Act 2009 and its predecessors. The Full Bench’s decision included consideration not only of s.611, but also s.570, which provides when costs may be ordered to be paid by a Court;
[23] Given the similarities between ss 611 and 570, in particular the common use of the expression ‘vexatiously or without reasonable cause’, judgements which have construed s.570 and its legislative antecedents are relevant to our consideration of s.611.
[24] In Heidt v Chrysler Australia Ltd Northrop J said of s.197A of the Conciliation and Arbitration Act 1904 (Cth), a predecessor provision to s.570 of the FW Act;
“The policy of s.197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties, defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court.”
[25] The application of these observations to the construction of s.611 requires some qualification. Section 570 deals with the ordering of costs in court proceedings in relation to matters arising under the FW Act. In court proceedings the usual practice is that an order for costs follows the outcome of the substantive proceedings. As we have mentioned the Commission context is different. The Commission’s power to order costs only arises in the context of ss.376, 400A, 401, 611 and 780 of the FW Act. There is no general practice of cost following the event. Despite these differences the observations of Northrop J in Heidt are apposite to s.611.
[26] Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s.611(1)) - and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:
2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.
2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.
2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.
2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.
[27] In the context of s.570 and its legislative antecedents courts have observed that an applicant who has the benefit of the protection of a provision such as s.570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s.611 of the FW Act. 45 (references omitted)
[42] The Full Bench has also commented, in relation to an application for an order for security for costs in an unfair dismissal matter;
“We further note that costs orders in this jurisdiction are extraordinary, and security for costs orders even more so. This is because the Act reflects the longstanding principle that costs will not be awarded against parties in industrial proceedings, other than in exceptional circumstances. Costs are limited to circumstances where the proceedings have been commenced vexatiously, without reasonable cause, or in circumstances where it should have been reasonably apparent that the application had no reasonable prospect of success. It should be noted that a proceeding is not to be classed as being instituted without reasonable cause simply because it fails, but rather in circumstances where the applicant’s own version of the facts, it is clear that the proceeding must fail”. (references omitted) 46
[43] In Kangan Batman Institute of Technology and Further Education v AIRC 47, the Federal Court commented on the policy of an antecedent of s.611, s.170CJ(2) of the Workplace Relations Act 1996. The section provided;
(2) If the Commission is satisfied that a party (first party) to a proceeding relating to an application under s 170CE has acted unreasonably in failing:
(a) to discontinue the proceeding; or
(b) to agree to terms of settlement that could lead to the discontinuance of the application;
the Commission may, on an application under this section by the other
party to the proceeding, make an order for costs against the first party.
[44] In Kangan Batman Institute of Technology and Further Education v AIRC, the Federal Court held;
A party does not institute proceedings without reasonable cause merely because that party fails in the argument put to the Court: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J. The section reflects a policy of protecting a party instituting proceedings from liability for costs, but that protection may be lost. 48 (emphasis added)
[45] Sub-section 611(2)(a) refers to whether an application has been made or responded to “vexatiously or without reasonable cause”, which the MFB complains was the case with the UFU Originating Application.
[46] The Industrial Relations Court of Australia gave consideration to the meaning of similar wording to that contained in s.611(2)(a) in the matter of Hanrahan v Westfarmers Dalgety 49. The Court was required to consider the provisions of s.347(1) of the Industrial Relations Act, which contained the following;
“A party to a proceeding in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first mentioned party instituted the proceeding vexatiously or without reasonable cause.” 50
[47] In relation to that provision, the Court found;
“The relevant proceeding is the application for interlocutory relief. So the question is whether that application was instituted vexatiously or without reasonable cause. In determining that question, I am not concerned with the wider question as to whether the claim in the principal proceeding, the unlawful termination proceeding with an invocation of the associated jurisdiction, was instituted vexatiously or without reasonable cause.
I am not prepared to say that the application for interlocutory relief was instituted vexatiously. The word ‘‘vexatiously’’ has a connotation of action taken to harass or annoy another party, an element of malice being involved. However, I think the proceeding was instituted without reasonable cause. Any proper consideration of the situation should have indicated to the applicants and their advisers that there was no substantial chance that they would succeed in obtaining the relief that has been sought before me today. Accordingly, s 347(1) does not apply, with the result that I am free to exercise a discretion to order costs.
I see no reason to refuse to exercise that discretion. The respondent has been put to expense in resisting an application which in my opinion should never have been made.” 51
[48] The Full Bench has adopted the approach to the word “vexatiously” as being an alternative ground to “without reasonable cause”, both used within s.611(2)(a), applying where there is a reasonable basis 52. In this regard the Full Bench has followed Nilsen v Loyal Orange Trust53 in which North J “observed that this context requires the concept of vexatiousness to be narrowly construed” noting “that an application will be made vexatiously ‘where the predominant purpose is ... to harass or embarrass the other party, or to gain a collateral advantage.’”54
[49] In relation to the phrase “without reasonable cause” the Full Bench’s approach has been to apply the reasoning set out in Kanan v APTU 55, with the test of “without reasonable cause” not being whether the application might have been successful, but whether the application should not have been made.56 Wilcox J in Kanan v APTU said that;
“It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.” 57
[50] The reasoning in Kanan v APTU has been endorsed by the Courts and the FWC subsequently. 58
[51] The test within subsection 611(2)(b) refers to whether “it should have been reasonably apparent” to an applicant or party responding that the application or response “had no reasonable prospect of success”. The Full Bench has summarised the approach to be taken to that subsection in Baker v Salva Resources 59;
[10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:
- “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; 60 and
- a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless 61 or so lacking in merit or substance as to be not reasonably arguable.62
[52] In GH Deane v Paper Australia 63, an appeal of an unfair dismissal decision, the Full Bench noted the reference to an application being “manifestly untenable or groundless” stemmed from Wright v Australian Customs Service64 and referred to an order for costs being a discretion of the Commission after establishing, in the way of a condition precedent, that “upon the facts apparent to the applicant at the time of instituting the appeal, the proceeding in question was manifestly untenable or groundless”.65 While the Commission is able to make an order for costs, “[w]hether it should do so is a separate although closely related question which requires a separate exercise of discretion.”66 (emphasis added)
[53] In the context of consideration of an appeal dealing with summary judgement in a Federal Court proceeding, and in which consideration arose of the phrase “no reasonable prospect of successfully prosecuting the proceeding” the High Court held that no paraphrase can be adopted of the expression “no reasonable prospect” and full weight must be give to the expression as a whole. 67
[54] In this matter, Counsel for both parties agreed they were unaware of any decisions of the Commission that have considered the award of costs in a matter which did not involve an unfair dismissal matter, either in the context of the Fair Work Act 2009 or predecessor legislation. 68
[55] In making its UFU Originating Application, the UFU indicated that the dispute related to clauses 19 and 42 and Schedule 4. In contrast to these references the UFU’s later written submissions to the Commission, filed in response to Directions, (which are referred to above), made reference mainly to clause 42, and contained a single reference to clause 19.
[56] The MFB argues that, in making submissions in this way, the UFU was restricting the basis of its application to the head of power, if any, that might be contained within clause 42 and was indicating that it no longer sought to rely upon any head of power that might be available under clause 19. It says further, that in restricting the basis of its submission, and thereby the available jurisdiction of the Commission, the union’s position was in conflict with the position it had put to the Federal Court in UFU v CFA.
[57] So far as is relevant to these proceedings, UFU v CFA held that clause 38.3 of the CFA Operational Staff Agreement is not invalid, and the judgement included the following contextual references;
“224 Clause 38 of the Agreement is headed “Allowances and Reimbursements General” and it deals with various allowances that are payable including allowances for personal expenses and accommodation, meals, spoilt meals, travel expenses and reimbursement, attendance at training facilities, driving licence fee reimbursement, relieving duty, after hours work, after hours disturbance, temporary work location, change of residence, uniforms and equipment, first aid, language, and certain qualifications.
225 The dispute relates to cl 38.3 which provides:
In accordance with existing practice the parties agree that any new allowance and/or variation to an existing allowances claim will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.
If broadly construed this clause sits poorly, or may be seen to be inconsistent, with other parts of the Agreement, particularly cl 65 which prohibits any extra claims and cl 15 which sets out the dispute resolution procedure.” 69
[58] The CFA Operational Staff Agreement provision referred to above is similar, but not identical, to clause 42.3 of the MFB Operational Staff Agreement, which provides;
“42.3. Any additional, new or increase of allowance above that already provided in the agreement will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.”
[59] In UFU v CFA, the UFU had submitted the following;
“158. Clause 38.3 needs to be properly construed in order to consider the arguments put up against its validity. It provides:
In accordance with existing practice, the parties agree that any new allowance and/or variation to an existing allowance claim will be referred to FWA for determination. Both parties reserve their rights to put their respective positions.
159. The clause must be understood in its context. That context includes the agreement between the CFA and the UFU that certain matters would be arbitrated after the Agreement was approved.
160. The whole effect of clause 38.3 is to leave open the prospect that new allowances might be granted or existing allowances might be changed to reflect changed circumstances, either as an outcome of the processes referred to in the CFA's letter of 13 August 201 0 or otherwise.
161. Accordingly, the clause is nothing more than an exception to the no extra claims provision of the agreement. A similar provision in another UFU agreement has been so held by Fair Work Australia. It does not confer upon the FWC the power to arbitrate new allowances. That power resides in clause 15 of the agreement because the new allowances are matters pertaining to the relationship of employer and employee.” 70 (emphasis added and references omitted)
[60] Justice Murphy held the following about the CFA Operational Staff Agreement;
“242 On the basis that, properly construed, cl 38.3 does not stand alone as a provision conferring power to grant new allowances or vary existing allowances, I do not see the Agreement as inconsistent with the FW Act. It was open to the parties to agree upon a dispute resolution procedure that related only to matters arising under the Agreement, just as it was open to the parties to refuse to set aside any Reserved Matters capable of being later arbitrated. The parties chose a different course, and that course was available to them.
243 On the basis that cl 38.3 does no more than invoke the dispute resolution power in cl 15 I do not consider that it falls outside the “permitted matters” in s 172. I accept the CFA’s contention that cl 38.3 is not a dispute resolution term as provided in ss 186(6), 739 and 738(b) of the FW Act. But it is not invalid because, properly construed, it is not a source of power for the Commission to privately arbitrate such matters.” 71
[61] In addition the Court noted the following with respect to the operation of the dispute resolution procedure;
245 In this context I note that any debate about the validity of cl 38.3 is essentially arid. Even if I accept the CFA’s contention that the clause is invalid, the dispute resolution procedure in cl 15 means that the numerous allowances included in the Reserved Matters list can be brought before the Commission for private arbitration. 72
[62] The issues litigated before the Federal Court in UFU v CFA are both extensive as well as ongoing.
[63] The MFB contentions about the UFU’s conduct in relation to this proceeding and UFU v CFA distil to an argument that the UFU said on the one hand to the Court that clause 38.3 of the CFA Operational Staff Agreement “is not a dispute resolution provision but an exception to the no extra claims clause, clause 65” 73 and “does not confer upon the FWC the power to arbitrate new allowances”74 and said on the other hand to this Commission that clause 42.3 of the MFB Operational Staff Agreement that the clause was the jurisdictional basis for its application to vary allowances.
[64] At the request of the MFB, the UFU produced by consent an extract of the relevant parts of its UFU v CFA, after the hearing of the costs application had concluded, and written submissions in relation to the extract were provided by the parties. A perusal of the UFU submissions extract indicates the union submitted to the Court the following about the CFA Operational Staff Agreement’s clause 38.3;
• the context of the clause “includes the agreement between the CFA and the UFU that certain matters would be arbitrated after the agreement was approved” 75;
• “The whole effect of clause 38.3 is to leave open the prospect that new allowances might be granted or existing allowances might be changed to reflect changed circumstances ...” 76;
• “... the clause is nothing more than an exception to the no extra claims provision of the agreement”; 77
• “... because clause 38.3 does no more than allow the invocation of clause 15 it is not inconsistent with the provisions relied upon by the CFA”; 78
• “... clause 38.3 is not a dispute resolution provision, but an exception to the no extra claims clause, clause 65” 79.
[65] While it is the case that the application itself in the UFU Originating Application makes reference to the alleged dispute relating to “[c]lauses 19 and 42, and Schedule 4” 80, the submissions filed by the UFU in the UFU Originating Application makes a single reference to clause 19 and makes a greater number of references to clause 42 and predecessor clauses.
[66] The MFB, in relation to the MFB Costs Application, relies upon the UFU statement that the CFA clause did not confer upon the FWC a power to arbitrate new allowances, coupled with its lack of enlivenment of clause 19 as proof the UFU was endeavouring to argue one thing to the Federal Court and another to this Commission. This, in a Court, it was submitted, would be an abuse of process by a party. It was argued this would mean that counsel for the union in the Court would be professionally unable to appear to argue the contrary position before the Commission.
[67] This submission rests firmly on the proposition there was no enlivenment of such jurisdiction as may exist within clause 19. In this regard, the MFB point firstly to the lack of reference to the clause in the UFU Originating Application Outline of Submissions and secondly to the failure on the part of the union to have followed the five steps referred to in clause 19.1 for the making of an application to FWC to deal with a dispute under s.739.
[68] The UFU arguments in response include that the jurisdiction of clause 19 had been invoked and that it did not agree with the submissions of the MFB about the claimed procedural failures in relation to the five steps referred to in clause 19.1. It argued, that there was a well established custom and practice of both parties bringing disputes to the Commission where the five step process had not been followed. It argued that the decision given by me in the matter of UFU v CFA/CFA v UFU 81, in which I found there was no jurisdiction to deal with a dispute because the dispute resolution procedure had not been sufficiently followed, was not a correct interpretation of CFA Operational Staff Agreement. The UFU further submitted that, because of parallel clauses in the MFB Operational Staff Agreement, the reasoning was not applicable to the MFB agreement either.
[69] The UFU Originating Application submissions made by the UFU cover four subjects;
• the plain and clear meaning of clause 42.3 is that an allowance can be increased by determination of the Commission; 82
• the same provision to clause 42.3 was in the 2002 and 2006 Agreements and, with the principles of interpretation allowing resort to the use of extrinsic materials, the history of the formation of the agreement supports that the UFU can pursue increases to allowances under this clause, as well as through the disputes resolution (citing as confirmation of this proposition a reference to a 2012 decision by Commissioner Roe 83);84
• movements in the Consumer Price Index as measured by the Australian Bureau of Statistics since the time of making the agreement warrants adjustment of the allowances by 6.1%; 85 and
• it is not to the point that the Agreement has now passed its nominal expiry date and that negotiations for a new agreement are taking place. 86
[70] In response to these submissions, the MFB argued that Clause 42.3 is not a valid source of power for the FWC to arbitrate, since;
• it is not a permitted matter within the meaning of s.172(1);
• in the alternative it is not a term dealing with disputes within the meaning of s.738(b), therefore failing to enliven the jurisdiction of s.739(4);
• the clause is inconsistent with the scheme of the Act governing approval of enterprise agreements which requires, as at the date of approval, the Agreement being approved to contain all of the provisions which are to have effect as an enterprise agreement.
[71] In addition, the MFB argued the union’s application should be rejected on discretionary grounds.
[72] The UFU written submissions in the UFU Originating Application were filed late, and the Commission’s file records that the UFU apparently misunderstood the filing date. Whether that fact explains their brevity was not addressed in these proceedings. Although the UFU written submissions in the UFU Originating Application were brief, that observation is not synonymous with the proposition that the application or grounds relied upon were manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.
[73] It is noted within the UFU written submissions in the UFU Originating Application there is a reference, albeit a very brief one, to the clause 19 Dispute Resolution Procedure, when the UFU argues that the UFU can pursue increases to allowances under clause 42.3 and “[i]t can also seek the resolution of the claims through the disputes resolution clause (see [2012] FWA 1085 at [17])”. An objective view of this submission is a connection with the indication contained in item 4 of the UFU Originating Application.
[74] Despite the brevity of the UFU’s outline of submissions, I do not discern an intention by the UFU to withdraw, or back away from the claim in its UFU Originating Application that the dispute related to clauses 19 and 42 and Schedule 4 of the MFB Operational Staff Agreement. An objective reading of the likely hearing, had it proceeded, would be that the UFU would have sought to argue how the Commission’s jurisdiction was enlivened, including that it was enlivened by clause 19, (albeit that such endeavour may possibly have met with opposition from the MFB).
[75] The contention by the MFB that the UFU had not complied with the five step process in the Dispute Resolution Procedure is one that required testing, which would have been done had the UFU Originating Application proceeded to hearing. While the MFB’s argument that the failure to follow the process bars the application has some force, and especially in light of my decision as set out in UFU v CFA/CFA v UFU 87, the alternative proposition advanced by the UFU is of sufficient weight to allow testing. The fact that the MFB raised an objection does not bar the alternative, and the alternative warranted a consideration if that is what the Applicant sought.
[76] I also have formed the view that the UFU’s submissions, beyond the issue of jurisdictional enlivenment, objectively held some merit. This view is formed having taken account of not only the outline of submissions filed by the UFU, but also the material filed at the same time as the submissions. As referred to above, this consisted of transcript of agreement certification proceedings before Simmonds C. from 28 November 2002 and the ABS Consumer Price Index, September Quarter 2013.
Conclusion
MFB Costs Application
[77] As previously referred to, the MFB Costs Application relies upon both ss.611(2)(a) and (b).
[78] In relation to paragraph (a), I am not satisfied on the basis of the material before me that the UFU Originating Application was instituted vexatiously, as an “action taken to harass or annoy” with an element of malice being involved 88 or with a predominant purpose to harass or embarrass sought to gain a collateral advantage89. Likewise, in relation to whether the UFU Originating Application was commenced “without reasonable cause”, I do not consider, on the facts apparent to the UFU at the time of application, there was no substantial prospect of success90. The facts as put forward by the UFU at the time do not make it “clear that the proceeding must fail”.91
[79] Paragraph (b) requires the application of an objective test, of whether it should have been reasonably apparent to the UFU their application had no reasonable prospect of success. Notwithstanding the MFB’s submissions in response to the Originating Application, an objective consideration of the UFU’s submissions is that they held merit above the level of being manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. 92
[80] I am therefore not satisfied, in relation to the MFB Costs Application, that it should have been reasonably apparent to the UFU that the UFU Costs Application had no reasonable prospect of success.
UFU Costs Application
[81] In contrast to the MFB Costs Application, the UFU Costs Application relies only upon s.611(2)(b), the test for which is whether it should have been reasonably apparent to the MF its costs application had no reasonable prospect of success.
[82] Objectively, the MFB’s contention that the UFU Originating Application had no or insufficient prospects of success held merit. However, this is not to say that the UFU application had no merit, merely that it was reasonably open to the MFB to argue that the application held insufficient merit. Although I have determined the UFU’s application had merit above the point of being so lacking in merit or substance as to be not reasonably arguable, the material before the Commission equally does not allow the conclusion to be drawn that the MFB’s application lacked merit or prospects of success.
[83] I am therefore not satisfied, in relation to the UFU Costs Application, that it should have been reasonably apparent to the MFB that the MFB Costs Application had no reasonable prospect of success.
[84] As a result of the foregoing;
- I must now dismiss the MFB Costs Application and an Order doing so is issued at the same time as this Decision; and
- I must now dismiss the UFU Costs Application and an Order doing so is issued at the same time as this Decision.
COMMISSIONER
Appearances:
Mr Langmead for Applicant
Mr M. McDonald SC and Mr McKenny for Respondent
Hearing details:
2014.
Melbourne:
February, 19
1 AE881005.
2 UFU Originating Application, Form F10, item 4.
3 Agreed Statement of Facts, paras 3 - 9.
4 UFU Amended Outline of Submissions, UFU Originating Application, 28 October 2013.
5 AG2002/6037.
6 Cat. No. 6401.0.
7 MFB Costs Application, form F6, item 3.
8 MFB Costs Application Outline of Submissions, paras 8 - 11.
9 [2014] FCA 17.
10 Transcript, PN 144.
11 AE881690.
12 MFB Reply Submissions, MFB Costs Application, para 5.
13 MFB Costs Application Outline of Submissions, paras 21
14 (2007) 162 FCR 392
15 Workplace Relations Act 1996, s.824(2)
16 (2007) 162 FCR 392
17 UFU Outline Of Submissions in Reply to MFB Costs Application, para 4 -8.
18 MFB Reply Submissions, MFB Costs Application, para 6.
19 UFU Costs Application Outline of Submissions, para 1.
20 Ibid, paras 5 - 6
21 See for example United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board[2012] FWA 8838, at [26]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board[2012] FWA 1085, at [27]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board[2012] FWAFB 9555 at [25]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [PR 953710] (relating to an earlier version of clause 42)
22 United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2012] FWA 8838, at [26]
23 Application for Certification of s.170LJ Agreement, Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2002, AG2002/6037, 28 November 2002, PN 27
24 Exhibit UFU 4, Email from Jeremy Murphy to Commander Stockton, 14 January 2014
25 [2012] FWAFB 9555
26 Ibid, at [22] - [26]
27 UFU Costs Application Outline of Submissions, para 7 - 8
28 See for example Exhibit UFU 3 - Transcript of proceedings before Smith DP, 4 June 2013, in Matter No. C2013/4577, PN 96 - 104
29 UFU Costs Application Outline of Submissions, para 8
30 Exhibit UFU2, Statement of Rini Krouskos, 15 January 2014
31 [2011] FWA 1083
32 Ibid, at [14]
33 (2002) PR922358
34 Ibid, para 14.
35 MFB Outline of Submissions on the UFU Costs Application, para 3.
36 Ibid, para 4.
37 Ibid, para 9.
38 MFB Outline of Submissions on the UFU Costs Application, para 15
39 [2010] FWAFB 9832
40 MFB Outline of Submissions on the UFU Costs Application, para 15, citing Alcoa Australia, ibid, at [16]
41 Alcoa Australia, at [20] – [23]
42 MFB Costs Application, Outline of Submissions, para 1.
43 UFU Costs Application, Outline of Submissions, para 1.
44 E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[2014] FWCFB 810.
45 Ibid, at [23] – [27].
46 Zornada v St John Ambulance Australia (Western Australia) Inc.[2013] FWCFB 8255, at [35] (subject to Application for Judicial Review)
47 160 IR 405
48 Ibid, at [60]
49 Hanrahan v Wesfarmers Dalgety (1995) 68 IR 105, per Wilcox CJ.
50 Ibid, p 110, per Wilcox CJ.
51 Ibid, pp105-106.
52 Church v Eastern Health, at [29]
53 [1997] 76 IR 180 at 181
54 Church v Eastern Health, at [29]; see also Qantas Airways Ltd v Carter[2013] FWCFB 1811, at [17]; New England and Western Tenants Advice and Advocacy Service v Doherty[2014] FWCFB 150, at [5]
55 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
56 Church v Eastern Health, at [30]
57 Kanan v APTU, p 265
58 See, for example, Khiani v Australian Bureau of Statistics [2011] FCAFC 109, at [50]; Reeve v Ramsay Health Care Australia Pty Ltd (No. 2) [2012] FCA 1322, at [10]; Cavar v Nursing Australia [2012] FCA 338 at [22]; Hill v Compass Ten Pty Ltd (No.3) [2012] FCA 993, at [8]; CFMEU v BMD Constructions Pty Ltd [2013] FCA 41, at [17]; Nimmo, in Re: Australian Education Union (NT Branch) (No. 2) [2011] FCA 728, at [28] - [30]
59 Baker v Salva Resources Pty Ltd[2011] FWAFB 4014
60 Wodonga Rural City Council v Lewis, PR956243, at para 6.
61 Deane v Paper Australia Pty Ltd, PR932454, at paras 7 and 8.
62 A Smith v Barwon Region Water Authority [2009] AIRCFB 769, at para 48
63 (2003) AIRCFB PR932454
64 (2002) 120 IR 346
65 GH Deane v Paper Australia, at [8]
66 Ibid, at [5]
67 Spencer v The Commonwealth (2010) 241 CLR 118, at 58 - 60, per Hayne, Crennan, Kiefel and Bell JJ
68 Transcript, PN 365-368; 504-507; 516-522
69 [2014] FCA 17, at [224] - [225]
70 UFU Outline of Submissions (in part) to the Federal Court of Australia, VID440/2012, 16 April 2013, at 158-161.
71 Ibid, at [242] - [243].
72 Ibid, at [245].
73 UFU Outline of Submissions to the FCA, para 167.
74 Ibid, para 161
75 ibid, para 159.
76 ibid, para 160.
77 ibid, para 161.
78 ibid, para 162.
79 ibid, para 167.
80 Form F1, item 3.
81 [2013] FWC 7013
82 UFU Originating Application Outline of Submissions, para 2.
83 [2012] FWA 1085 at [17].
84 UFU Originating Application Outline of Submissions, paras 6 - 9.
85 Ibid, paras 10 - 12.
86 Ibid, para 13.
87 [2013] FWC 7013
88 Hanrahan v Westfarmers Dalgety, p 105.
89 Nilsen v Loyal Orange Trust, (1997) 76 IR 180.
90 Kanan v APTU (1992) 43 IR 257, at 264-265.
91 Ibid.
92 Baker v Salva Resources Pty Ltd[2011] FWAFB 4014, at [10].
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