FEDERAL COURT OF AUSTRALIA Australian Industry Group v Fair Work Australia (No 2) [2012] FCAFC 138 Citation: Australian Industry Group v Fair Work Australia (No 2) [2012] FCAFC 138 Parties: AUSTRALIAN INDUSTRY GROUP v FAIR WORK AUSTRALIA, ADJ CONTRACTING PTY LTD (ACN 006 778 507), COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, NATIONAL ELECTRICAL AND COMMUNICATIONS ASSOCIATION, AUSTRALIAN COUNCIL OF TRADE UNIONS, AUSTRALIAN MINES AND METALS ASSOCIATION INC and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION File number: VID 1388 of 2011 Judges: NORTH, MCKERRACHER AND REEVES JJ Date of judgment: 24 September 2012 Catchwords: COSTS – industrial law – whether Court has power to award costs – application of s 570(1) of the Fair Work Act 2009 (Cth) in circumstances where Full Court exercising its original jurisdiction under the Fair Work Act Legislation: Fair Work Act 2009 (Cth) ss 186, 562, 563, 570 Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth), s 39B(1) Cases cited: Australian Industry Group v Fair Work Australia [2012] FCAFC 108 Australasian Meat Industry Employees' Union v Fair Work Australia (No 2) [2012] FCAFC 103 Construction, Forestry, Mining and Energy Union v CSBP Limited (No 2) (2012) 202 FCR 149 Date of hearing: Determined on the papers Date of last submissions: 4 September 2012 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr SJ Wood SC with Mr JRM Tracey Solicitor for the Applicant: Australian Industry Group Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: The Second Respondent did not appear Counsel for the Third Respondent: Mr H Borenstein SC with Mr MW Harding Solicitor for the Third Respondent: Mr G Borenstein, In-House Lawyer, Electrical Trades Union Counsel for the Fourth Respondent: The Fourth Respondent did not appear Counsel for the Fifth Respondent: The Fifth Respondent did not appear Counsel for the Sixth Respondent: Mr MJ Follett Solicitor for the Sixth Respondent: Ms A Cochrane, In-House Lawyer, Australian Mines and Metals Association Inc Counsel for the Seventh Respondent: The Seventh Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1388 of 2011 BETWEEN: AUSTRALIAN INDUSTRY GROUP Applicant AND: FAIR WORK AUSTRALIA First Respondent ADJ CONTRACTING PTY LTD (ACN 006 778 507) Second Respondent COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Third Respondent NATIONAL ELECTRICAL AND COMMUNICATIONS ASSOCIATION Fourth Respondent AUSTRALIAN COUNCIL OF TRADE UNIONS Fifth Respondent AUSTRALIAN MINES AND METALS ASSOCIATION INC Sixth Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Seventh Respondent JUDGES: NORTH, MCKERRACHER AND REEVES JJ DATE OF ORDER: 24 September 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1388 of 2011 BETWEEN: AUSTRALIAN INDUSTRY GROUP Applicant AND: FAIR WORK AUSTRALIA First Respondent ADJ CONTRACTING PTY LTD (ACN 006 778 507) Second Respondent COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Third Respondent NATIONAL ELECTRICAL AND COMMUNICATIONS ASSOCIATION Fourth Respondent AUSTRALIAN COUNCIL OF TRADE UNIONS Fifth Respondent AUSTRALIAN MINES AND METALS ASSOCIATION INC Sixth Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Seventh Respondent JUDGES: NORTH, MCKERRACHER AND REEVES JJ DATE: 24 september 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: INTRODUCTION 1 On 14 August 2012 we dismissed the applicant's (AIG) application for judicial review of a decision of the first respondent (FWA) to approve the 'ADJ Contracting Pty Ltd Enterprise Agreement 2010-2014' (the Agreement): Australian Industry Group v Fair Work Australia [2012] FCAFC 108. AIG sought writs of certiorari and mandamus directed to FWA on grounds that that FWA's decisions relating to the Agreement were affected by jurisdictional error. 2 On delivery of the substantive judgment we ordered the parties to file submissions, if any, on costs. AIG filed submissions on costs on 28 August 2012 arguing that no costs order should be made. The sixth respondent, the Australian Mines and Metals Association Inc (AMMA), which supported AIG's application, filed submissions on 4 September 2012 to the effect that the Fair Work Act 2009 (Cth) (FW Act) precluded the awarding of costs in this proceeding. The third respondent (CEPU), the bargaining representative for the Agreement and the main party supporting FWA's decisions relating to the Agreement in this proceeding, indicated to the Court by letter dated 4 September 2012 that it had no submissions to make in relation to the issue of costs. THE COURT'S JURISDICTION 3 AIG's originating application, filed on 9 December 2011, invoked the original jurisdiction of the Court conferred by s 562 of FW Act and s 23 of the Federal Court of Australia Act 1976 (Cth) (FC Act). Section 562 of the FW Act relevantly provides: 'Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.' Section 563 is also relevant: Exercising jurisdiction in the Fair Work Division of the Federal Court The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if: (a) an application is made to the Federal Court under this Act; or (b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or… 4 AIG's originating application was clearly an application within the meaning of s 563(a) of the FW Act. The relief sought fell within the meaning of s 563(b) of the FW Act. AIG also notes that s 186 of the FW Act imposes a duty on FWA to approve or refuse to approve an enterprise agreement; this is clearly a 'matter' arising under the FW Act. LEGISLATIVE PROVISION ON COSTS 5 Section 570 of the FW Act relevantly provides: Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court… exercising jurisdiction 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 section 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 FWA; (ii) the matter arose from the same facts as the proceedings. 6 Section 569 and s 569A of the FW Act, concerning the right of Commonwealth and State and Territory Ministers to intervene in proceedings in relation to a matter arising under the Act, do not apply in the present proceeding. Nor is section 570(2) applicable in this case. Neither the CEPU nor any other respondent suggest that AIG commenced its application for judicial review of the Agreement vexatiously or without reasonable cause. Nor did any party argue that AIG, by an unreasonable act or omission, caused the other parties to incur costs. Nor have any submissions been made to the effect that a party unreasonably refused to participate in a matter before FWA. 7 AIG cites Australasian Meat Industry Employees' Union v Fair Work Australia (No 2) [2012] FCAFC 103 and argues that in the present proceeding we should not depart from such a 'clear, persuasive, directly relevant, and recent authority'. In Australasian Meat Industry Employees' Union (No 2), the Full Court considered whether s 570 of the FW Act applied in a proceeding brought in the original jurisdiction of the Court where jurisdiction was conferred by s 562 of the FW Act. In their joint judgment, Jessup and Tracey JJ explained (at [16]) that because the 'right or duty sought to be enforced owed its existence to the provisions of the FW Act', notwithstanding that the Court also had jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth), the matter arose under the FW Act and s 570 of the FW therefore applied to preclude a costs order because the Court was not satisfied that the applicant had acted unreasonably or vexatiously. In our respectful view, this decision is clearly correct. AIG is also correct in distinguishing this situation from that in Construction, Forestry, Mining and Energy Union v CSBP Limited (No 2) (2012) 202 FCR 149 (for the same reasons identified by their Honours in Australasian Meat Industry Employees' Union (No 2) (at [17])). In the former instance, the Full Court was exercising appellate jurisdiction under s 24(1)(a) of the FC Act, not original jurisdiction vested by s 19 of that Act and s 562 of the FW Act. CONCLUSION 8 It follows that s 570(1) of the FW Act operates in the present proceeding to exclude the awarding of costs. No order as to costs will be made. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, McKerracher and Reeves. Associate: Dated: 24 September 2012