Unlocking the Mystery: When Will the Fair Work Commission Grant Costs Orders

No-Costs Jurisdiction

The Fair Work Commission (Commission) is notoriously, by and large, a no-costs jurisdiction. This means that, by default, parties in proceedings before the Commission bear their own costs. Having regard to section 611 of the Fair Work Act 2009 (Cth) (the Act). However, the Act incorporates various provisions that deviate from this general principle in matters such as unfair dismissals and general protections applications that prompt the Commission to exercise its discretion and issue costs orders against a party.

The Fair Work Commission’s discretionary power was most recently exercised in Hong-Phuc Christopher Hua v Nayax AU Pty Ltd (U2023/4554). In this matter, Mr Hong-Phuc Christopher Hua (Costs Respondent) erroneously filed an unfair dismissal application against Nayax AU Pty Ltd (Costs Applicant) despite signing a Deed of Release relating to his employment. The Applicant failed to attend three Fair Work listings, failed to provide any submissions to support his application, and did not comply with the Commission’s orders or provide reasons for his failure to comply.

Following the Commission’s decision to dismiss the Costs Respondent’s application, the Costs Applicant was successful in its claim for costs on a partial indemnity basis on grounds that the Costs Respondent in the proceedings acted unreasonably and in contravention of directions made by the Commission pursuant to section 400A(1) of the Act.

How can we help?

The representatives for the Costs Applicant in this matter was Antunes Lawyers. The Fair Work Commission determined the outcome of this case based on the submissions demonstrating the baseless nature of the Costs Respondent’s application.

If you think you have a situation that warrants the recovery of costs in an employment-related dispute, please contact us on (02) 9964 0499 or use the form below.

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