FEDERAL COURT OF AUSTRALIA

All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union (No 2) [2018] FCAFC 23

ORDERS

THE COURT ORDERS THAT:

1.    There will be no order as to the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 27 November 2017, the Full Court delivered judgment in All Trades Queensland Pty Limited v Construction, Forestry, Mining and Energy Union [2017] FCAFC 189, ordering that the applicants’ further amended originating application be dismissed. The respondents seek now an order that the applicants pay their costs of the application.

2    In their further amended originating application, the applicants sought orders quashing decisions of the Fair Work Commission and various declaratory and other orders. The issue before the Commission concerned whether the All Trades Queensland Pty Ltd Apprentice/Trainee Enterprise Agreement 2015 passed the “better off overall test” under s 193(1) of the Fair Work Act 2009 (Cth) (the FWA). The resolution of the application required the Court to determine the proper construction of provisions of the Fair Work (Transitional Provisionals and Consequential Amendments) Act 2009 (Cth) and the Fair Work (Transitional Provisions and Consequential Amendments) Regulation 2009 (Cth).

3    The Court’s jurisdiction under s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs is subject to s 570 of the FWA, which provides:

570    Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

…

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before the FWC;

(ii)    the matter arose from the same facts as the proceedings.

4    The respondents rely on s 570(2)(a) of the FWA, submitting that the applicants instituted the proceedings vexatiously or without reasonable cause. The respondents submit that the Court found “no merit” in the application and assert that the proceeding was always bound to fail.

5    The Court rejected the applicants’ construction of the relevant legislative provisions, but, contrary to the respondents’ submission, made no finding that the application had “no merit”. The proceeding involved difficult and complex legislation. As the reasons for judgment show, the respondents’ submissions as to the construction of that legislation were fairly arguable. The application was not instituted vexatiously or without reasonable cause.

6    There should be no order as to the costs of the application.

Associate:    

Dated:    21 February 2018

SCHEDULE OF PARTIES