Costs against representatives

See Fair Work Act s.376

The Fair Work Commission may make an order for costs against a representative for costs incurred by the other party to the matter if satisfied that the representative caused those costs to be incurred because:

• the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter, or
• of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

There is no requirement that representatives be granted permission to appear before the Commission can make an order for costs.[1]

Encouraging the person to start, continue or respond to the matter etc

This requires a positive act on the part of the lawyer or paid agent, not merely an absence of discouragement.[2]

Costs against representatives NOT ordered

Employer claimed that employee’s representative failed to analyse the jurisdictional basis of employee’s claim

Andrews v Cooperative Research Centre for Advanced Composite Structures Ltd T/A Advanced Composite Structures – Australia [2011] FWA 2575 (Blair C, 3 May 2011).

The employer sought indemnity costs from the employee, and from the employee’s representative on the basis that he had failed to analyse the jurisdictional basis for the claim.

In relation to the representative, it was found that the application was lodged before the representative was engaged, and that the representative did nothing more than represent the interests of his client in a professional manner and in reliance on material provided by the applicant.

Costs were refused.

Cross applications for costs

Price v John Holland Group Pty Limited [2013] FWC 6700 (Sams DP, 6 September 2013).

In this matter there were cross applications for costs arising from a jurisdictional decision of the Commission. In the primary decision, the Commission dismissed the jurisdictional objections of the employer, which had sought to have the employee’s general protections dismissal dispute application summarily dismissed.

The employee was seeking costs against the employer’s representative on the basis that application to summarily dismiss the application had no reasonable prospects of success and that this outcome should have been reasonably apparent to the employer’s representative.

The employer was seeking costs against the employee’s representative on the basis that the general protections dismissal dispute application identified no workplace right/s allegedly contravened and that this was an unreasonable act/s and/or omissions through which the employee’s representative had caused the employer to incur unnecessary costs.

The Commission found that both the employee’s and the employer’s applications for costs did not satisfy the relevant tests under the Fair Work Act and as a result were dismissed.