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Fair Work Act 2009
s.604 - Appeal of decisions
Groote Eylandt Mining Company Pty Ltd T/A South32 GEMCO
v
Construction, Forestry, Mining and Energy Union
(C2016/2755)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC
COMMISSIONER ROE MELBOURNE, 31 MAY 2016
Appeal against decision [[2016] FWCA 792] of Commissioner Gregory at Melbourne on
5 February 2016 in matter number AG2015/7568 – costs application.
[1] This decision arises from an application for costs, pursuant to ss.611(2)(a) and/or (b)
of the Fair Work Act 2009 (the Act), by the Construction, Forestry, Mining and Energy Union
(CFMEU) in relation to an appeal by Groote Eylandt Mining Company Pty Ltd T/a South 32
GEMCO (GEMCO) against a decision by Commissioner Gregory of 5 February 2016.1 The
appeal by GEMCO was brought against the inclusion of a note in paragraph 3, in accordance
with s.201(2) of the Act, that the Agreement covers the CFMEU in the decision by
Commissioner Gregory approving the Groote Eylandt Mining Company Enterprise
Bargaining Agreement 2015 (the Agreement).
[2] In the appeal, GEMCO submitted that Commissioner Gregory erred by including the
CFMEU in paragraph 3 of his decision on the basis that the CFMEU did not give GEMCO, as
the employer covered by the Agreement, a copy of the written notice stating that the CFMEU
wanted the Agreement to cover it before the Agreement was approved by the Commissioner,
having regard to the Full Bench authority in RotoMetrics Australia Pty Ltd v Australian
Manufacturing Workers’ Union (RotoMetrics)2 in relation to the construction of s.183(2) of
the Act.
[3] In the appeal, we granted permission to appeal on the basis that a jurisdictional issue
was raised by GEMCO and the point warranted consideration on appeal in light of
RotoMetrics, dismissed the appeal and confirmed the Commissioner’s decision.
[4] In the appeal decision, we noted that it was an unusual course for the Fair Work
Commission (the Commission) to reconsider a Full Bench decision3 and, although not bound,
as a non-judicial body, “by the principles of stare decisis, as a matter of policy and sound
administration”, the Commission has generally followed Full Bench authority on the “issues
to be determined, in the absence of cogent reasons for not doing so”.4 We also accepted that
the reconsideration of Full Bench authority on the issues to be determined is a serious step to
be rarely taken and only taken in relation to a decision concerning statutory construction in
[2016] FWCFB 3492
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 3492
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circumstances where the decision is patently in error or has produced unintended or irrational
consequences.5
[5] For the reasons stated at paragraphs 36 to 43 of our decision in the appeal, we were
satisfied that there were cogent reasons to take the rare and serious step of reconsidering the
authority in RotoMetrics and apply a different construction of s.183(2) of the Act.
[6] During the course of the appeal, the CFMEU submitted that if permission to appeal
was denied or the appeal was allowed and the decision confirmed, it wished to be heard on the
question of costs, identifying that its costs application was made on the basis that it should
have been reasonably apparent to GEMCO that its appeal application had no reasonable
prospect of success (s.611(2)(b) of the Act).6 Both GEMCO and the CFMEU consented to the
determination of the CFMEU’s costs application, if pressed, on the basis of written
submissions.7
[7] In its written submissions, the CFMEU indicated that it pressed its costs application,
advancing it, more broadly, on the basis of ss.611(2)(a) and/or (b), specifically that the appeal
was brought without reasonable cause and/or its prosecution had no reasonable prospects of
success.8
[8] Section 611of the Act provides:
“(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).”
[9] In relation to the CFMEU’s costs application, GEMCO submitted that there was
significant doubt as to the power of the Commission to award costs under s.611 in relation to
its appeal since such costs can only be awarded in relation to an “application”. It is not
necessary to address that issue in light of our disposition of the costs application, nor is it
appropriate to do so, given the very limited argument advanced by GEMCO and the CFMEU
on the point. In this respect, GEMCO barely argued the point. We will presume for the
purpose of disposing of the CFMEU application, that there is a power of the Commission to
[2016] FWCFB 3492
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award costs under s.611 in relation to an appeal, as is inherent in the Full Bench decision cited
by the CFMEU in Adrian G Cremona (formerly trading as Frooty Fresh) v Lane.9
[10] The appeal by GEMCO was brought on the basis that the decision by Commissioner
Gregory was inconsistent with the authority in RotoMetrics and the construction of s.183(2)
of the Act adopted and applied in that Full Bench decision. Whilst the CFMEU believed, and
put to GEMCO in advance of the appeal, that it was inevitable that the appeal would fail,
either on the basis that (a) leave to appeal would be refused; (b) RotoMetrics would be
distinguished; or (c) (as ultimately occurred) RotoMetrics would not be followed, GEMCO
could have reasonably presumed that its appeal had a significant prospect of success given
RotoMetrics and the longstanding approach of the Commission to the reconsideration of Full
Bench decisions.
[11] In circumstances where the decision to dismiss the GEMCO appeal required the taking
of the rare and unusual step of reconsidering earlier Full Bench authority, we are not
persuaded that the appeal by GEMCO was instituted without reasonable cause or that the
prosecution of the appeal had no reasonable prospects of success.
[12] The CFMEU’s application for an order for costs in respect of the appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Final written submissions:
Construction, Forestry, Mining and Energy Union submissions on costs – 12 May 2016.
Groote Eylandt Mining Company submissions on costs – 19 May 2016.
Construction, Forestry, Mining and Energy Union reply submissions on costs – 27 May 2016.
Printed by authority of the Commonwealth Government Printer
Price code A, PR580978
1 [2016] FWCA 792.
2 (2011) 212 IR 373.
3 Australian Nursing Federation v Alcheringa Hostel Inc, (2004) 134 IR 446, at p. 457.
4 [2016] FWCFB 2432, at para 28. See also Cetin v Ripon Pty Ltd (t/as Parkview Hotel), (2003) 127 IR 205, at p. 214. See
also Re Queensland v Construction, Forestry, Mining and Energy Union, Section 111AAA application of the Workplace
Relations Act 1996, (1998) 86 IR 216.
5 [2016] FWCFB 2432, at para 29. See also Telstra Corporation Ltd v Treloar (2000) 102 FCR 595, at para 28.
6 [2016] FWCFB 2432, at para 57.
7 [2016] FWCFB 2432, at para 58.
8 Construction, Forestry, Mining and Energy Union submissions of 12 May 2016.
9 [2011] FWAFB 6984, at paras 10 and 27. In the other decision referred to by the CFMEU, Armstrong
v Taxation Management Services Pty Ltd ATF TMS, [2016] FWCFB 1179, costs were awarded pursuant to s.400A of the
Act, with the Full Bench finding it was unnecessary to determine whether or not costs should be paid pursuant to s.611.
