The labour required for MPower to build solar farms must be on an "as needed basis", and MPower employs casual employees and contract agency staff, as required to meet these project requirements.

The applicant was fully aware of these requirements and conditions as this is the second assignment on which the applicant has worked on for MPower.

The applicant has always been called upon for new solar projects and it was expected that this employment relationship would have continued following the completion of the applicant's work on the Copper Coast Highway and Agery Road Solar Farms."

[23] MPower's Form F8A also stated as follows:

"4.1 What is the Respondent's response to the outcome the Applicant is seeking?

The applicant was employed as a casual employee (see Appendix 1 Offer of Employment). The applicant's specific skill set and role was no longer required on the two projects. A significant percentage of the projects had been completed and MPower had formalised the engagement of the main electrical subcontractor (STE Solutions) which would be responsible for the remaining major works. Both projects have entered the final stages.

The original schedule for the two projects showed that they would be completed by the end of September 2020, this timeframe was known by the applicant from the commencement of his employment with MPower.

The applicant received a good will gesture on termination of an additional $1,000 site allowance in appreciation of his work.

The termination of the applicant's employment was not due to, or in any way related to, actions by the applicant during their employment with MPower. There was no adverse action against the applicant because of any workplace issues, incidents, or the actions of any other persons.

[24] I observe that the F8A form did not indicate a jurisdictional objection based upon the absence of a dismissal. Indeed, in that response it referenced the "termination of the applicant's employment." The only indication of what it later argued as the basis for its subsequent jurisdictional objection is a reference to "it was expected that this employment relationship would have continued"; albeit that this reference was obtuse.

[25] A (conciliation) conference was convened before a delegated staff member of the Commission on 10 December 2020 and the s.365 application was not resolved. Despite the absence of an apparent jurisdictional objection by the Respondent at that point, the Commission Member responsible for issuing a certificate under s.368(3) of the Act sought clarification from MPower as to whether there was a jurisdictional objection associated with whether there had been a dismissal. This was done in the context of a then relatively recent Federal Court decision[4] concerning the requirement for the Commission to deal with relevant jurisdictional objections in s.365 matters.

[26] In response[5] on 23 December 2020, MPower indicated to the Commission that its position was that the Applicant was not dismissed, and it raised a jurisdictional objection. The s.365 application was subsequently allocated to the Commission as presently constituted to deal with the objection. On 2 January 2021, Mr Bland (through his lawyer, Mr Collett) wrote to MPower seeking the basis of the objection and no response was provided at that time.

[27] On 14 January 2021, Mr Collett on behalf of the Applicant again wrote[6] to MPower and indicated that the effect of the objection being raised would be to (unnecessarily) delay the advancement of the application. That correspondence also referenced the letter expressly terminating Mr Bland's employment, invited the Respondent to withdraw its jurisdictional objection and indicated that an application for costs would be made if that was not done.

[28] On 15 January 2021, MPower responded to the letters of 2 and 14 January 2021 and advised that the jurisdictional objection was that "(Mr Bland) was employed on a casual basis and the nature of the engagement related directly to a specific project."[7] MPower also indicated, in effect, that the time and costs involved were a matter for Mr Bland to have considered when commencing "the unfounded application".

[29] A Directions Conference was conducted by this arm of the Commission on 27 January 2021. MPower indicated, in effect, that its objection was based upon s.386(2)(a) of the Act. I observe that this provision is directed towards fixed term or fixed task employment that concluded at the relevant time and that this did not appear to be consistent with the Respondent's position as indicated in the Form F8A. In that light, I invited MPower to reconsider its position in light of the decisions dealing with that provision. Directions were issued on the basis that that the Respondent would confirm its position as part of that process and if required a hearing on the jurisdictional issue would be conducted.

[30] In light of the legal complexity[8] of the s.365 application and as a matter of fairness,[9] Mr Bland was given permission to be represented by a Lawyer (Mr Collett) under s.596 of the Act. This was not opposed by MPower.

[31] On 22 February 2021,[10] MPower filed its outline of submissions and in so doing for the first time expressly advanced the proposition that Mr Bland's "employment contract" was dismissed or terminated but not the "employment relationship" and MPower by its actions did not intend to bring the employment relationship to an end. Despite the opportunity to do so, no witness evidence was provided by MPower to support its objection at that time.

[32] On 4 March 2021, Mr Collett wrote[11] to MPower indicating, amongst other matters, the contradiction between its original and latest grounds for contending that there was no dismissal, referred to relevant authorities on the difference between the notions of the employment contract and employment relationship, and contended that the objection and the delay it produced would mean that any opportunity to be reinstated to work on the project had been eliminated. Mr Collett again indicted that costs would be sought, and this was repeated in correspondence[12] on 8 March 2021.

[33] As outlined earlier in this Decision, following a hearing conducted on 17 March 2021, MPower's jurisdictional objection was dismissed[13] by the Commission as presently constituted on 25 March 2021.

[34] With the rejection of the jurisdictional objection and given the fact that the Commission could not be satisfied that the application was not capable of being resolved in light of that development, the s.365 application was subject to a further conference, this time before (another) Member of the Commission. The matter was not resolved, and the s.368 certificate was subsequently issued.

5.2 Whether there were relevant unreasonable acts or omissions by MPower

[35] Mr Bland's costs application needs to be considered against the background presumption set out in s.611(1) of the Act; namely that "[a] person must bear the person's own costs in relation to a matter before the FWC." This is of course subject to the specific capacity for the Commission to award costs provided in relation to certain circumstances and applications, such as s.375B.

[36] As noted by the Full Bench in Keep, "the legislature intended that the power to order costs provided by s.375B only be exercised where there is clear evidence of unreasonable conduct." Mr Bland contended that MPower acted unreasonably on the various grounds set out earlier in this decision and I deal below with each noting that some are related, and each sets the context for the overall assessment to be made.

[37] Before doing so I observe that MPower is not an unsophisticated employer and had relevant internal HR staff fully engaged in the response and the jurisdictional objection. It did not appear to take legal advice in connection with this matter. I would not consider that an employer responding to a s.365 application, or making an objection, would necessarily need to take legal advice as part of developing and advancing its position in a reasonable manner. Given the scheme of the Act,[14] such an approach would in my view be problematic. However, at least in terms of the relevant costs provisions, the presumption is that a party will not act unreasonably so as to have the other party incur costs and this involves an assessment of all of the particular circumstances in any given case. This may include whether at least some steps were undertaken to consider the likely factual and legal foundation for its position, particularly when advancing a jurisdictional objection in a matter of this kind. This is also likely to include the circumstances of the employer and the nature of the jurisdictional objection, and when and how that objection was advanced.

[38] In this case, MPower's response and approach to the proceedings was somewhat naive and half-hearted. This included the manner in which the Form F8A was contemplated and the absence of any identification of the non-dismissal jurisdictional objection despite the direct question being posed in the form; the changing and inconsistent basis upon which it advanced the objection; and the absence of any witness evidence to support the facts of its objection - addressed only with the latitude of the Commission during the hearing. Whether its actions were unreasonable to meet the prerequisites of a costs order under s.375B(1) remains the immediate issue.

[39] I turn now to the alleged omissions particularly relied upon by Mr Bland.

[40] As outlined above, MPower did not identify the non-dismissal jurisdictional objection despite the direct question on that issue being posed in the form. Indeed, the language otherwise adopted by MPower in the form would be generally consistent with the notion that it accepted that it had terminated Mr Bland's employment. It did, at one point refer to the employment relationship but not in such a manner that would have readily alerted the reader to the jurisdictional objection that it eventually ran.

[41] Mr Bland contends that this was an omission and led to the unnecessary costs of the first conciliation conference, which it asserts, would not have been conducted if the objection was reasonably stated in the form. I do accept that this was an omission; however, there is a degree of speculation associated with the proposition that this led to additional costs being incurred. That is, it is not clear that the making of the proper objection would have led to the cancellation of the first conference. This is not the automatic approach adopted by the Commission and although a party may have objected to the conference - leading to it not proceeding, I cannot be satisfied that this would have happened.

[42] I also observe that the conciliation conference provided an early opportunity for the matter to be resolved. I would however accept that should the Respondent not have raised or foreshadowed the jurisdictional objection at the conference, this would have been unreasonable and would have led to a lost opportunity to have an informed discussion around that issue. However, I have no evidence about what occurred at the first conference, other than the application was not resolved and it was assigned to a Member to consider the issuing of the certificate. This would tend to suggest that the objection was not foreshadowed or advanced at the conference; but in applying s.375B of the Act I need to be satisfied that there is clear evidence that MPower's conduct was unreasonable.

[43] There was no factual or legal basis for the original objection based upon s.386 of the Act. The Respondent's own Form F8A and the factual propositions advanced at the hearing of the jurisdictional objection were not consistent with any of the elements of the s.386 objection. That is either the fixed term/fixed project basis or that the cessation of the employment coincided with the end of that term or project. Further, the "casual" nature and termination rights evident in the contract were not consistent with the exclusion provided by s.386 of the Act.

[44] It was unreasonable to object on that basis and any costs incurred by Mr Bland in responding and preparing for that proposition were unnecessarily and unreasonably incurred.

[45] This was the objection as finally advanced by MPower. This involved an assertion by the Respondent that Mr Bland's "employment contract" was dismissed or terminated but not the "employment relationship" and MPower by its actions did not intend to bring the employment relationship to an end. It would be clear from the jurisdictional decision that I accepted that MPower's proposition that it was the claimed termination of Mr Bland's employment relationship with it, and not necessarily the termination of the employment contract, that was relevant to the immediate issue. However, for reasons set out in the decision, I found that the employment relationship was terminated by MPower on 16 October 2020.

[46] Further, MPower's proposition was based upon a misunderstanding of the authorities it claimed supported its case and there was little evidence of the ongoing employment relationship that it claimed.

[47] This was a poor case but on balance not clearly unreasonable. It was broadly consistent with the notion set out in the Form F8A, relied upon some context about the earlier employment not otherwise before the Commission, had some (albeit very limited) foundation in the facts, and part of its conceptual proposition was maintained.

[48] MPower did not initially provide any witness evidence to support its objection despite the opportunity to do so provided by the pre-hearing directions and the evident factual disputes relevant to its position. It did ultimately lead evidence during the hearing from Ms Fittler with the latitude provided by the Commission.

[49] This conduct was unreasonable but did not create any delay in the hearing or determination of the matter and only very marginally increased the time taken to complete the hearing itself. There was also no prejudice to Mr Bland given his capacity to rely upon the advice and representation of Mr Collett. As a result, I do not consider that this aspect supports a costs award in this matter.

[50] Given my findings above, I am satisfied of the existence of some unreasonable conduct by MPower that caused Mr Bland to incur costs which meet the requirements of s.375B(1) of the Act.

[51] In light of the above conclusion a discretion exists for the Commission to make an order for costs against MPower to the benefit of Mr Bland.

[52] I consider that it is appropriate to make an order in relation to the costs incurred arising from the unreasonable conduct. I consider that the costs should taxed on the basis of the relevant prescribed schedule of costs.[15] I take this view given the basis upon which I found that there was unreasonable conduct and the following observations about the other exacerbating factors relied upon by Mr Bland. Whilst the jurisdiction objection may not have provided an ultimate defence to a general protections application, as Mr Bland could in the alternative have made a s.372 (non-dismissal) application, this does not make the taking of a jurisdictional objection to the s.365 application unreasonable. In addition, although the making and disposition of the jurisdictional objection has delayed the issuing of the s.368 certificate - and by implication access to the Court (or the Commission for consent arbitration) - it is likely that in any event any process leading to the determination of the application would have taken it beyond the end of the projects concerned. This would have prevented the practical notion of reinstatement in this case.

[53] Given my findings above, I am satisfied of the existence of some unreasonable conduct by MPower that caused Mr Bland to incur costs as required by ss.375B(1) of the Act. I have also found that it is appropriate to make an order in relation to the costs reasonably arising for Mr Bland from the unreasonable conduct, taxed on the basis of the relevant prescribed schedule.

[54] Mr Bland is to provide a revised costs summary to give effect to this decision. In the event that the costs amount cannot be agreed by the parties, I will consider the competing positions and determine the final order.

D Collett, of Johnston Withers Solicitors, with permission for Mr Bland, the Applicant.

R Scott behalf of MPower Projects Pty Ltd, the Respondent.

[1] [2021] FWC 1406

[3] [2015] FWCFB 1956.

[4] Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68].

[9] Relevant to s.596(2)(b) and (c) of the Act.

[10] The compliance date was delayed to permit MPower further time to settle its position - without any delay to the hearing date.

[13] [2021] FWC 1406.

[14] Including s.596, s.611 and the nature of the costs provisions more generally.

[15] For present purposes, the Federal Court costs relied upon by the Applicant appear to be appropriate.

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