DECISION

Fair Work Act 2009
s.604—Appeal of decision

Loi Toma
v
Workforce Variable Pty Ltd T/A Workforce International Group
(C2019/1868)

Application for costs – application adjourned.

[1] On 18 June 2019, a Full Bench of this Commission refused to grant Mr Loi Toma permission to appeal a decision of Senior Deputy President Hamberger 1 (the Appeal), in which the Senior Deputy President dismissed Mr Toma’s application for an unfair dismissal remedy.

[2] On 20 June 2019, Mr Toma’s former employer, Workforce Recruitment and Labour Services Pty Ltd (Workforce), filed an application against Mr Toma for the costs it incurred in respect of the Appeal pursuant to ss.400A and 611 of the Fair Work Act 2009 (the Workforce Costs Application).

[3] Mr Toma subsequently made application to the Federal Court of Australia seeking judicial review of the Full Bench decision (Federal Court proceedings).

[4] On 15 July 2019, Mr Toma made an application for costs pursuant to s.401 of the Act against the paid agent who represented Workforce in the proceedings (the Toma Costs Application).

[5] Both Costs Applications were listed on 24 July 2019.

The Toma Costs Application

[6] The Toma Costs Application was made outside the 14 day time limit prescribed in s.402 of the Act. Workforce sought that the Commission dismiss the Toma Costs Application, given the Act makes no provision for this time limit to be extended. The parties were given an opportunity to be heard in relation to this application. After hearing from the parties, I decided that I would dismiss the Toma Costs Application as it was not made in accordance with the Act.

The Workforce Costs Application

[7] The Commission heard from the parties as to whether, in the circumstances, the Workforce Costs Application should be adjourned pending the determination of the Federal Court proceedings.

[8] Mr Toma argued that the Workforce Costs Application should be adjourned until the Federal Court Proceedings were concluded.

[9] Workforce argued that its application should be dealt with as soon as practicable, because it was inevitable that if its application was successful and costs were awarded, Mr Toma would appeal, and it was preferable that all appeals be dealt with by the Federal Court together.

[10] Having considered the submissions made by the parties, I have decided to adjourn these proceedings until the Federal Court Proceedings have been concluded. I consider it is inappropriate to progress the Costs Application in these circumstances, as to do so could result in the awarding of costs that may have to be repaid depending on the outcome of the Federal Court Proceedings. It follows that I do not consider the submissions made by Workforce to be sufficiently persuasive as to outweigh the reason why it is more appropriate to adjourn the proceedings.

Conclusion

[11] The Workforce Costs Application is adjourned pending the determination of the Federal Court Proceedings.

DEPUTY PRESIDENT

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 1   [2019] FWCFB 4240.