See Fair Work Act 2009 s.401
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.
Representatives are not required to be granted permission to appear before the Commission can make an order for costs.
The Commission cannot make an order under s.401 for costs incurred in an appeal of an unfair dismissal decision.
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.