s.611 - Costs

Application for costs under s.611- s.739 application - costs not ordered - application dismissed.

• [1] The United Workers' Union (the Costs Applicant) made an application to the Fair Work Commission (the Commission) seeking an order for costs against the UWU Staff Union (the Costs Respondent) pursuant to s.611 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The application is made in the context of an application to deal with a dispute under s.739 of the Act by the Costs Respondent on 18 October 2025 (the Dispute Application).

• [3] The Costs Applicant was represented by Mr Luke Tiley of Hall Payne Lawyers in the substantive case, and in this costs matter. The Costs Respondent was represented by Ms Pareen Minhas in the substantive matter and in this costs matter.

• [4] The Costs Respondent's s.739 dispute application (Dispute Application) was filed on 18 October 2025 on behalf of four former employees of the Costs Applicant as their representative. The dispute alleged that the Costs Applicant was in breach of clause 14 of the Agreement when it failed to comply with its own workplace behaviour policy, which clause 14 requires the Costs Applicant to maintain.

• [5] The application was objected to on the basis that the Costs Applicant said the Costs Respondent was not able to bring the application as it was not a party to the United Workers Union Employment Agreement 2025 (the Agreement) and the dispute was not in relation to a matter arising under the Agreement.

• [6] On 29 October 2025, the matter was listed for conference. At the conference, the Costs Respondent notified that the parties being represented had been dismissed from their employment on 20 October 2025, since the application had been lodged and therefore withdrew the Dispute Application.

• [7] Later that same day the discontinuance was confirmed in writing to my Chambers.

• [8] On 6 November 2025, the Costs Applicant filed the application for costs.

• [9] The application for costs against the Costs Respondent was made pursuant to s.611 of the Act, which stipulates 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 s376, 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)."

• [10] Section 611 was included in the initially passed version of the Act. In 2012, it was amended to include s.400A in relation to the note for s.611(2). In relation to s. 611(2), the Explanatory Memorandum for the Fair Work Bill 2009 outlined the following:

"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."

• [11] The Costs Applicant sought an order for the Costs Respondent to bear some or all of the costs on the following grounds:

(a) The Dispute Application was made vexatiously within the meaning of s.611(2)(a) of the Act; and/or

(b) The Dispute Application was made without reasonable cause within the meaning of

(c) The Dispute Application was made in circumstances where it should have been reasonably apparent to the Costs Respondent that the Dispute Application had no reasonable prospects of success, within the meaning of s.611(2)(b) of the Act.

• [12] The Costs Applicant submitted the Dispute Application was made vexatiously and without reasonable cause and had no reasonable prospects of success because:

(a) the Costs Respondent lacked standing to bring the application because it is not covered by the Agreement. Further, the Costs Applicant notes that the Costs Respondent is neither party to the Agreement nor given any rights or responsibilities under the disputes resolution procedure.

(b) The matters the subject of the application did not fall within the procedure because they are not matters arising under the Agreement or the NES.

• [13] The Costs Applicant said for these reasons the Dispute Application should not have been made.

• [14] The Costs Applicant was of the view the Costs Respondent is made up of experienced current and former union officials. It would have been reasonably apparent to the Costs Respondent that the Dispute Application was made vexatiously and without reasonable cause and had no reasonable prospects of success. The Costs Applicant submitted it can be inferred from surrounding circumstances of the Dispute Application that the application was made for an improper and collateral purpose - that is, to harass, annoy, vex and/or embarrass the Costs Applicant.

• [15] The Costs Respondent submitted that there is no basis for a costs order to be made. The dispute application was brought in good faith, raised an arguable issue under the Agreement, and any procedural or administrative errors were minor and readily capable of correction under the Act. There is no basis to conclude that the application was made vexatiously, without reasonable cause, or had no reasonable prospects of success.

• [16] On 6 November 2025 the Costs Applicant invited the Cost Respondent to pay $1,219.45 to resolve the question of costs and foreshadowed that, if it did not do so and further costs were incurred, it would seek to recover them through this application.

• [17] On 7 November 2025 the Commission made the Directions dated 7 November 2025, as a result of which the Costs Applicant said it incurred further costs on or about 19 November 2025.

• [18] The Costs Respondent submitted the principles relevant to determining an application under s.611 were summarised in the Full Bench decision of Keep v Performance Automobiles Pty Ltd[1]:

"[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing (Church). Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application 'without reasonable cause' within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression 'without reasonable cause' is similar to that adopted for summary judgement, that is, 'so obviously untenable that it cannot possibly succeed'.

[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that 'it should have been reasonably apparent' to that person that their application had 'no reasonable prospect of success'. The expression 'should have been reasonably apparent' in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant's subjective belief.

[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had 'no reasonable prospects of success'. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996:

"unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available"."

• [19] The Costs Respondent conceded that it is not covered by the Agreement and that naming the UWU Staff Union as the Applicant was an error. While the Costs Respondent does not have standing to bring the application in its own right, it said it had been appointed as the representative of the employees the subject of the dispute, in accordance with clause 11.3 of the Agreement.

• [20] The Costs Respondent accepted that the application should have, and could have, been made in the names of the relevant employees, who at the time of the application were covered by the Agreement and had standing to bring the application in their own names. The substance of the dispute was initiated and pursued by the individual employees who are covered by the Agreement. Those employees invoked the dispute resolution procedure and instructed the Costs Respondent to lodge the application on their behalf. It was an inadvertent error that the application was brought in the name of the UWU Staff Union instead of the four employees the subject of the dispute.

• [21] The Costs Respondent submitted this was therefore a matter of form, not substance. It said the Commission has broad powers under s.586 of the Act to amend any application or other document or to waive any irregularity in form or manner. It is routine for the Commission to allow substitution or correction of parties where such an amendment would cause no injustice to the other side.

• [22] For the avoidance of doubt, the Costs Respondent submitted that should the Commission consider it desirable or necessary, the Costs Respondent submitted that s.586 of the Act can be utilised to substitute, nunc pro tunc, Julie Pascoe, Sara Gaske and Andrew Beitzel as Applicants in the s.739 proceeding instead of UWU Staff Union, including in the Form F10. The naming error could easily have been rectified through that process, had the matter continued. Such a procedural irregularity should not ground a costs order. It does not render the original application vexatious or without reasonable cause, nor does it mean that the application had no reasonable prospects of success.

• [23] The Costs Applicant submitted the faint suggestion that the naming of the Applicant was an 'error' is not adequately made out on the evidence. The Costs Applicant submitted attempts to fix the standing problem by (retrospectively) substituting the relevant individuals as applicants instead of the Costs Respondent were inappropriate. The Costs Applicant said as the Costs Respondent correctly observed, this could have been done during the currency of the proceeding. Indeed, this was generously suggested by the Costs Applicant but inexplicably not taken up.

• [24] The Costs Applicant said because the proceeding was discontinued on 29 October 2025, the Commission is now functus officio. According to Butterworths Concise Australian Legal Dictionary, one who is functus officio is precluded from again considering the matter even if new arguments or evidence are presented[2]. It said the Commission cannot now proceed as sought.

• [25] Given the above, the Costs Applicant said the Costs Respondent must remain the sole applicant. That party does not have and never had standing and that ought to have been apparent to the Costs Respondent.

• [26] The Costs Respondent noted that the Costs Applicant argued that the matters raised in the application did not fall within the dispute resolution procedure because they did not concern a matter arising under the Agreement or the NES.

• [27] The Costs Respondent disagrees. It said the dispute concerned the meaning and effect of clause 14 of the Agreement, which provides that "The Employer has and will maintain a policy in relation to Performance and Misconduct."

• [28] The Costs Respondent contended that the obligation to "maintain" such a policy necessarily involves both amending and complying with that policy. A policy cannot meaningfully be "maintained" if it is not enacted and applied. To "maintain" implies to preserve and give effect to - not merely to have a document in existence but to uphold and utilise it in practice.

• [29] The Costs Respondent said there was a genuine and arguable dispute as to what it means to "maintain" a policy in this context. The employees reasonably contended that failure by the employer to comply with its own performance and misconduct policy could amount to a breach of clause 14.

• [30] The Costs Respondent said it is not necessary for the Commission to determine that question now; it is sufficient that the application raised a bona fide and arguable issue under the Agreement. That alone is enough to demonstrate that the application was not doomed to fail at the outset and therefore was not made without reasonable cause or reasonable prospects of success.

• [31] The Costs Applicant submitted that "maintain" is not defined at clause 2 of the Agreement, so should be given its ordinary and natural meaning. Macquarie Dictionary defines maintain as "to keep in existence or continuance; preserve; retain".

• [32] The Costs Applicant said the Costs Respondent now contends that the obligation to "maintain" such a policy necessarily involves both amending and complying with that policy and that this was the subject matter of the application. However, that is not what the application said. On the contrary, in section 2.1 the application relevantly described the dispute as follows:

"16. We say that the Respondent is acting in a manner that is inconsistent with the objectives of its policy. At all times, the affected employees has engaged in conduct that is part of their role and is in the best interests of union members. The affected employees are being subject to a disciplinary process without reasonable basis.

17. Further, we say that the Respondent is acting in a manner that is inconsistent with its own grievance procedure..."

• [33] The Costs Applicant said the Commission should determine the Amended Costs application by reference to the application itself, not upon the Costs Respondent's self-serving re-characterisation of it. Out of an abundance of caution, the Costs Applicant dealt with both versions of the dispute.

• [34] As to the dispute as framed in the application, the dispute was about two policies (not incorporated into the Agreement) and was not about the Agreement or the NES. It was therefore bound to fail.

• [35] As to the dispute as re-framed by the Costs Respondent's submissions, this is a dispute about compliance with policy not about having a policy. The Costs Applicant said on the proper construction of clause 14, the Costs Applicant was required to have a policy in relation to performance and misconduct. No more, no less. A failure to have a policy would be a breach of the Agreement. However, a failure to comply with the policy would not be a breach of the Agreement because the clause does not say that. If the latter is what the drafters intended, it would be a simple matter for them to have said so. For these reasons the attempt to recharacterize the dispute does not assist the Costs Respondent: This version of the dispute is still not about the Agreement or the NES and is still bound to fail.

• [36] The Costs Respondent submitted it is accepted that an email notification for the scheduled conference was inadvertently missed. This was an honest and regrettable error, not deliberate non-compliance. Once the Costs Respondent became aware of the conference, a representative attended and explained that the organisers had since been dismissed and that the application would not be pressed further and would be withdrawn.

• [37] The Costs Respondent said this conduct was entirely reasonable in the circumstances. At no stage was there any intent to waste time, to harass, or to improperly prolong proceedings. The Costs Respondent continued that s.588 of the Act provides that an applicant can discontinue their application at any time.

• [38] The Costs Respondent said it also consented to Hall Payne Lawyers appearing for the purpose of assisting the Commission and facilitating the formal discontinuance of the matter. It said, this cooperative conduct is inconsistent with any suggestion of vexatiousness or unreasonableness.

• [39] The Costs Applicant rejected that it had suggested that the way the Costs Respondent conducted the proceedings provided a basis for a cost order and did not seek to make any submissions on this point.

• [40] At the outset the Costs Applicant noted that it put the Cost Respondent on notice of its position upon this issue as early as 8 October 2025 and again on 9 October 2025 (the Warnings). It said because of the Warnings, the Costs Respondent knew or ought to have known that it could not and should not file an application of this kind. Despite the Warnings, the Costs Applicant said the Costs Respondent irresponsibly filed the application and pursued it for 11 days, which conduct caused the Costs Applicant to incur the costs it seeks to recover via the Amended Costs Application. The Costs Applicant said this is a classic example of when a costs order should issue.

• [41] The Costs Respondent submitted there is simply no basis for the costs claimed. The Costs Applicant seeks approximately $1,219.45 for attending a short Commission conference for an application it says had no reasonable basis. The Costs Respondent said it is unclear why the Costs Applicant considered it necessary to engage external legal representation for a matter it said had no reasonable prospect of success, particularly when it has experienced officers and officials who routinely deal with disputes of this nature.

• [42] The Costs Respondent said the costs claimed are disproportionate and not reasonably incurred. Where an application is withdrawn following an honest procedural mistake, and no prejudice has been suffered by the other party, it said the discretion under s.611 should not be exercised to penalise a party.

• [43] It said the Costs Applicant's decision to incur legal costs for a short conference was unnecessary and self-inflicted.

• [44] Regarding s.611(2)(a) of the Act, though I agree with the Cots Applicant's submissions concerning the standing of the named Applicant party (the UWU Staff Union) and whether the dispute was able to be brought under s.739 of the Act, I am not persuaded that the Dispute Application was made vexatiously to embarrass or annoy the Costs Applicant.

• [45] Employees can at least purport to bring a dispute against their employer. The fact that in this case the Costs Applicant is a union, does not of itself support a conclusion the former employees sought to vex or embarrass it.

• [46] The application was filed, however incorrectly, while the employees were still employed. At the conference, upon being provided the opportunity to respond to the response from the Costs Applicant, the Costs Respondent identified that the employees had been dismissed and would be filing alternative, dismissal related applications in the Commission and the Dispute Application could be withdrawn.

• [47] Moving to the subject matter argument and that the Dispute Application was made without reasonable cause under s.611(2)(a) and that is was reasonably apparent that the application had no reasonable prospects of success under s.611(2)(b), though it is not the subject of the application before me to determine, my preliminary view is that I agree with the Costs Applicant's argument that a failure to comply with the policy would not be a breach of the Agreement because the clause requires only that a policy is made and maintained. Therefore, an argument that there was no reasonable cause for the application to be made can be made out.

• [48] Despite accepting that there was no jurisdiction to make the Dispute Application and that grounds may arise under ss.611(2)(a) and (b) of the Act to award the payment of costs, I am not persuaded to exercise my discretion to award costs in all of the circumstances.

• [49] Regarding the costs incurred, I note that the Commission is a no cost jurisdiction and is intended to be easier to access and less formal than a court. It is not required for a party to be legally represented before the Commission and indeed the majority of parties the Commission services appear self-represented.

• [50] I therefore note and agree with the Costs Respondent's submission that it was the Costs Applicant's decision to engage external legal representation for the written response to the Dispute Application and attendance at the conciliation conference on 29 October 2025. Given that both parties conduct their work in the field of industrial relations, I consider that it is reasonable to suggest that the Costs Applicant could have represented itself without seeking external representation and incurring costs. Further, the matter was conducted concisely, within 11 days, with only one request for a response from the Costs Applicant, and the conference which lasted under 30 minutes.

On that basis, the application made by the Costs Applicant for the payment of costs by the Costs Respondent is dismissed.

[1] [2015] FWCFB 1956.

[2] MacMillan Boedel Ltd v Minister of Finance (1985) 60 BCLR 145.

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