Fair Work Act 2009

s 611 - Application for costs

Anthony Fifield, Campnet Australia Pty Ltd Trading AS Bust Digger

Costs application - dispute not subject to an application before the Fair Work Commission - application dismissed

[1] Christopher Ellis (the Applicant) has applied to the Commission under ss 611(2)(a) and (b) of the Fair Work Act 2009 (Cth) (Act) for an order that Anthony Fifield and Campnet Australia Pty Ltd T/A Bust Digger (collectively the Respondent) pay the Applicant's legal costs incurred by the Applicant in pursuing two disputes against the Respondent, which appear to be outside of the jurisdiction of the Fair Work Commission (Commission).

[2] It is first observed that the Applicant applied to the Commission for an unfair dismissal remedy on 9 January 2025. The unfair dismissal application proceeded to conciliation before one of the Commission's staff conciliators on 13 February 2025. The matter settled at that conciliation conference. A Form F50 Notice of Discontinuance was filed by the Applicant on 26 March 2025, and the Commission's file was closed.

[3] The Applicant's representative, Mr Paul King of Regis Industrial Relations, lodged, on behalf of the Applicant, a Form F6 on 23 June 2025 (costs application). Section 402 of the Act, which addresses applications for costs orders under s 611 in relation to a matter arising under Part 3-2, requires that the application must be made within 14 days after the Commission determines the matter or the matter is discontinued. If the Form F6 is in respect of the unfair dismissal application, it has been made outside the period for filing an application for costs pursuant to s 402 of the Act. However, as will become apparent, the costs application has not been made in relation to the unfair dismissal application.

[4] Returning to the disputes that appear to have given rise to the costs application, the first arose from the Respondent's purported failure to correctly pay the Applicant's annual leave loading and annual leave entitlements arising under the National Employment Standards and the Building and Construction General On-Site Award (Award).[1] The Applicant submits that this dispute was ultimately resolved through a complaint filed with the Fair Work Ombudsman (Ombudsman) on 15 May 2024, and therefore it did not proceed to a conciliation conference or hearing before the Commission. The Applicant further submits that had the matter not been resolved with the assistance of the Ombudsman, the Applicant would have been compelled to seek resolution through the Commission by making an application pursuant to a dispute resolution clause in the Award. It is on this basis that the Applicant presses that the dispute constitutes a 'matter' properly within the Commission's purview.

[5] The second dispute that appears to have given rise to the costs application is the Respondent's purported unreasonable failure to provide records. That is, prior to filing a complaint with the Ombudsman, the Applicant, in accordance with the Fair Work Regulations 2009 (Cth), made formal requests for copies of his pay slips for the last six years and records relating to leave. According to the Applicant, it took several letters and emails to the Respondent to secure the documents, and in the process the Applicant incurred legal costs due to the unreasonable delay by the Respondent in providing those documents. The Applicant submits that the documents were critical to ascertaining the Applicant's entitlements and substantiating his claims.

[6] The Applicant held multiple grievances about the purported conduct of the Respondent in relation to the ongoing failure of the Respondent to provide records, the Respondent's unreasonable refusal in respect of demands for payment of outstanding annual leave and leave loading entitlements, the Respondent's assertions that correspondence from the Applicant had been interfered with and constituted a forgery or scam, the Respondent's unreasonable refusal to settle the dispute about annual leave owed and annual leave loading - all of which are said to have culminated in the Applicant incurring substantial and unnecessary legal costs.

[7] In the Applicant's submissions, he clarifies that it is the Ombudsman 'entitlements claim' (costs incurred in relation to the dispute concerning unpaid annual leave and leave loading entitlements) to which the Form F6 purports to relate. The Applicant submits that the entitlement claim required the intervention of the Ombudsman and was subsequently resolved on 9 June 2025, without a formal conciliation or hearing.

[8] On 8 July 2025, Chambers issued correspondence to the parties observing that the application for costs did not appear to be related to the unfair dismissal application but rather the entitlements claim. The parties were informed that under s 587 of the Act, the Commission may, of its own initiative, dismiss an application if it has no reasonable prospects of success. The parties were further informed that I had formed the preliminary view based on the application filed, that the application for costs had no reasonable prospects of success, noting that the application for costs had been brought under s 611 of the Act which permits the Commission to make an order for costs, under certain circumstances, in relation to an application to the FWC.

[9] In that same correspondence from Chambers, it was highlighted that notwithstanding the cover letter of the Applicant or the application for costs, it was not apparent that the costs application was in relation to an application to the Commission. It is uncontroversial that neither the purported failure by the Respondent to correctly pay the Applicant's annual leave loading and annual leave entitlements nor the purported unreasonable failure of the Respondent to provide employee records when requested, were subject to applications made to this Commission. The correspondence outlined that it therefore appeared that the application for costs was, at best, misconceived.

[10] Given the circumstances of the matter, I required the Applicant to file materials addressing why the costs application should not be dismissed under s 587 of the Act. No such imposition was placed upon the Respondent, albeit the Respondent was free to make submissions.

[11] The Applicant acknowledges that the immediate dispute, that is the entitlements claim, was resolved, in part and as noted, through the Ombudsman on 9 June 2025. That resolution was in respect to the annual leave entitlement for the 2023 and 2024 Christmas shut down periods. The Applicant's leave loading for the past six years was said to have settled on 3 June 2025. The Applicant submits that the entitlements claim did not generate a formal Commission matter number or proceed to a scheduled conciliation before a Commission Member. However, the Applicant submits the Commission nonetheless possesses jurisdiction to make a costs order under s 611 of the Act.

[12] The Applicant submits that s 611(2) of the Act refers to the Commission's power to order costs in 'a matter before the Commission' or 'where an application for the Commission to deal with the dispute' has been made. The dispute regarding the Applicant's entitlements arose, said the Applicant, directly under the Act and/or applicable industrial instruments. According to the Applicant, it therefore falls squarely within the broad jurisdiction of the Commission to deal with industrial matters.

[13] Expanding on this point further, the Applicant's representative made further submissions, which, for the sake of brevity, I have summarised as follows:

1. The Ombudsman's processes often serve as a preliminary or alternative pathway for disputes that, if unresolved, would ultimately require formal intervention by the Commission. The Applicant sought resolution of a 'matter' (the underpayment dispute) which it considered the Commission is empowered to deal with, and the Ombudsman's intervention facilitated the resolution of this 'matter' in a manner consistent with the Act's objectives.

2. Therefore, the dispute, managed and ultimately resolved through the Ombudsman's statutory functions, constituted a 'matter' properly within the Commission's purview under s 611 of the Act.

3. The Respondent's unreasonable conduct and maintenance of a position with no reasonable prospect of success occurred within the context of this overarching dispute, compelling the Applicant to incur significant and unnecessary legal costs to pursue entitlements that should have been paid promptly. It is precisely the purpose of s 611 of the Act to deter such unreasonable conduct in disputes falling within the Commission's domain, regardless of the precise procedural pathway taken to resolution.

[14] Having considered the fulsome submissions and materials of the Applicant, I am satisfied that the Applicant has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his costs application under s 587 of the Act.

[15] I am satisfied that the application has no reasonable prospects of success within the meaning of s 587(1)(c) of the Act, and that it is appropriate in the circumstances to dismiss the application on the Commission's own initiative by the facility available in s 587(3)(a).

[16] My detailed reasons follow.

[17] Part 5-1 of the Act is entitled 'The Fair Work Commission' and provides, among other things, the 'general rule' that a person must bear their own costs in relation to a matter before the Commission. Section 611(2) provides an exception to that 'general rule' to the extent that, in some circumstances, the Commission may order a person to bear some or all of the costs of another person in relation to an application to the Commission. Section 611 of the Act is set out as follows:

(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).

[18] If either s 611(2)(a) or (b) of the Act is satisfied, it is still the case that the Commission is not obliged to order costs. As was observed by the Full Bench in Captain Anthony Lucas v Qantas Airways Limited,[2] whether costs are to be awarded at all, and the amount of any costs that are awarded, involves the exercise of a discretion.[3]

[19] In considering the relevant statutory provisions at issue in this application, the starting point is to construe the words of the statute according to their ordinary meaning having regard to their context and legislative purpose. Essentially, the general principle of statutory interpretation is that all legislation is to be construed purposively. That general principle is mandated by s 15AA of the Acts Interpretation Act 1901 (Cth).[4] However, this does not justify a simplistic assumption that whatever construction furthers the statute's primary purpose must be determinative.[5] The words of the statute being construed should be read by reference to the language of the statute as a whole.

[20] Section 611(1) of the Act sets out that a person must bear their own costs in relation to a 'matter' before the Commission. The ordinary meaning of the term 'matter' is a subject or topic under consideration. It is a broad and inclusive term.

[21] However, s 611(1) of the Act specifically refers to 'a matter before the Commission' (italics my emphasis). Parameters have been set within the subsection, the subsection expressly providing in plain language that a person must bear the person's own costs in relation to a matter before the Commission. Again, to emphasise, the matter is one that is before this Commission. At all material times, the Applicant did not have a matter that was before this Commission insofar as his costs application is concerned.

[22] Section 611(2) of the Act sets out that in respect of any order of costs, the person may bear some or all of the costs of another person in relation to an application to the Commission - if either subsection (a) or (b) is met, and the Commission exercises its discretion to order costs.

[23] The word 'application' is ubiquitous within the Act and is used in varying contexts. One such context is that of making an application to the Commission, or stated alternatively, applying to the Commission for the Commission to otherwise vary, approve, grant an order, or, for example, deal with a dispute. Perhaps some of the most common applications made to the Commission are those made by individuals - the unfair dismissal application (s 394 of the Act) and the application for the Commission to deal with a dismissal dispute under Part 3-1 (s 365 of the Act).

[24] The Act does not define the term 'application' because its meaning is self-explanatory when the relevant statutory provisions are considered in context. The word 'application' in s 611(2) of the Act refers to applications that are lodged or otherwise made to the Commission, as provided for within the Act.

[25] The aforementioned exceptions to the 'general rule' are only enlivened in circumstances where an application under the Act has been lodged with, or made to, the Commission and the Commission is satisfied:

• (a) that a person made the application or responded to the application vexatiously or without reasonable cause; or

(b) 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.[6]

[26] Neither limb is enlivened unless there is an 'application' under the Act and the 'application' referred to is one made to the Commission.

[27] The Applicant has applied for an award of costs in relation to the entitlements claim in circumstances where the Commission has not been seized with power or authority to deal with such claim. At no time did the Applicant apply to the Commission to deal with disputes concerning his annual leave, annual leave loading, or the purported reticence of the Respondent to provide pay records. Costs have been sought against the Respondent where the costs application and supporting materials do not demonstrate that the costs were incurred in relation to an application to the Commission.

[28] This very point was highlighted to Mr King, the Applicant's representative, in correspondence from Chambers to Mr King on 8 July 2025. Notwithstanding, Mr King persisted with the costs application, which, as was communicated to Mr King, appeared, at best, to have been misconceived. One can only suggest that it would seem inappropriate to require the Applicant to proffer payment for such misguided service in these circumstances, if payment was being sought by the representative.

[29] Section 587 of the Act is set out as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

[30] Section 587 of the Act allows the Commission to dismiss an application on the Commission's own initiative in the early stages of proceedings. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application.[7]

[31] An application should not be dismissed under s 587 of the Act unless it is very clear that there are no reasonable prospects of success. As such the power under s 587 is not available if there are disputed facts that could affect the outcome of the proceedings.[8] Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.[9]

[32] As mentioned in my introductory remarks, I am satisfied that the application has no reasonable prospects of success within the meaning of s 587(1)(c) of the Act, and that it is appropriate in the circumstances to dismiss the application on the Commission's own initiative by the facility available in s 587(3)(a). The Applicant has been provided with a fair opportunity to make out his case for an award of costs and to address why his application should not be dismissed.

[33] I make the following order:

1. The application under s 611 of the Fair Work Act 2009 (Cth) made by Mr Christopher Ellis on 23 June 2025 is dismissed.

[1] MA000020.

[2] [2023] FWCFB 147 [3].

[3] Hansen v Calvary Health Care Adelaide Limited [2016] FWCFB 8162 [16].

[4] Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150, 166 [44] (Gageler J).

[5] Ryan v Commissioner of Police [2022] FCAFC 36; (2022) 290 FCR 369, 386 [110].

[6] Fair Work Act 2009 (Cth) s 611(2).

[7] Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [14].

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