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Security for costs
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adjournment
To end proceedings or to suspend them to another time or place.
appeal
To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.
bullying at work
Bullying at work, as defined by the Fair Work Act 2009, occurs when:
- a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
- the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
bullying policy
A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.
code of conduct
A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.
Commission
Abbreviation for Fair Work Commission.
Commonwealth
Refers to the Commonwealth government or an Australian territory.
conference
A private proceeding conducted by a Fair Work Commission Member.
constitutionally covered business
A constitutionally covered business is:
- a proprietary limited company
- a foreign corporation
- a trading or financial corporation formed within the limits of the Commonwealth
- the Commonwealth
- the Commonwealth authority
- a body corporate incorporated in a territory
- a business or organisation conducted principally in a territory or Commonwealth place.
It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.
decision
A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.
directions
Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.
evidence
Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.
Fair Work Act 2009
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
Fair Work Commission
Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.
Full Bench
A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.
harassment
Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.
hearing
A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.
jurisdiction
The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.
jurisdictional objection
An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.
matter
A case or legal proceeding before the Commission.
mediation
An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.
Member
A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.
non-constitutional corporation
An entity that is not a constitutional corporation. The following are not constitutional corporations:
- sole traders
- partnerships
- some state government bodies
- corporations whose activities do not include significant trading or financial functions (e.g. some charities).
order
An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.
outcome
The end result of an application made to the Commission.
outline of submissions
A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.
partnership
An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.
party
A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.
principal
A person or business that has entered into a contract for services with an independent contractor.
private enterprise
A business owned and operated by private individuals for profit, instead of by a government or its agencies.
procedural fairness
When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.
pty ltd
A proprietary limited company. A constitutionally covered business.
reasonable management action
In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.
Reasonable management action may include:
- performance management processes
- disciplinary action for misconduct
- informing a worker about unsatisfactory work performance or inappropriate work behaviour
- asking a worker to perform reasonable duties in keeping with their job, and
- maintaining reasonable workplace goals and standards.
In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.
Rules
service/to serve
A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.
sole trader
An organisation in which one person is responsible for the business.
WHS
Abbreviation for work health and safety.
WHS state or territory regulator
A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.
witness statement
A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.
worker
In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:
- an employee
- a contractor or subcontractor
- a person employed by a labour hire company who is working at a particular business or organisation
- an outworker
- an apprentice or a trainee
- a work experience student
- a volunteer.
Only people who are considered to be workers may apply for an order to stop bullying at work.
workplace
A place where a person performs work.
workplace bullying
See bullying at work.
Introduction
See Fair Work Act 2009 s.404 and Fair Work Commission Rules rule 55
Security for costs is when the Fair Work Commission orders that one party pay an amount to be held in trust before a matter proceeds to a hearing. Until the amount ordered is paid, the matter will be adjourned.
Section 404 of the Fair Work Act allows the Commission, through its Rules, to provide for security of costs. Rule 55 sets out the relevant rules.
Discretion
There is no absolute rule as to when the Commission will exercise the discretion to order security for costs.[1] Whether an order should be made depends on the circumstances of the case and 'what is required by the justice of the matter'.[2]
In Zornada v St John Ambulance Australia (Western Australia) Inc. the Full Bench stated that:
...costs orders in this jurisdiction are extraordinary, and security for costs orders even more so. This is because the Act reflects the longstanding principle that costs will not be awarded against parties in industrial proceedings, other than in exceptional circumstances.
...
Accordingly the Commission should award security for costs only in the rarest of circumstances, once the Commission has balanced the merits of the application, the financial position of the parties, and what is just in the circumstances.[3]
Financial position
The financial position of the party against whom the order is sought may be relevant in the circumstances.[4] There is no absolute rule that security for costs should be ordered against a party who is suffering financial hardship.[5] There is a general rule, however, that poverty should not prevent a party from having their matter determined by the Commission.[6]
Simply because an applicant is able to satisfy a security for costs order does not mean that an order is justified.[7]
Merits
The strength of the case of the party against whom the order is sought may also be relevant.[8] This may require a tentative evaluation of the party's prospects of success.[9] A case which is hopeless and bound to fail may be a reason to order security for costs.[10]
Whether the case raises issues of general public importance may also be relevant to whether security for costs are ordered.[11]
Repeated non-compliance of, or disregard to, practices, procedures and rulings may be indicative of vexatiousness.[12] This could result in the Commission dismissing the application for security of costs.
Case examples
References
[1] Merribee Pastoral v ANZ Banking Group(1998) 193 CLR 502, 513; cited in Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group [2011] FWA 2910 (Asbury C, 12 May 2011) at para. 7.
[2] ibid.
[3] Zornada v St John Ambulance Australia (Western Australia) Inc. (2013) 237 IR 48 [35].
[4] Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group [2011] FWA 2910 (Asbury C, 12 May 2011) at para. 8.
[5] Merribee Pastoral v ANZ Banking Group (1998) 193 CLR 502, 513; cited in Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group [2011] FWA 2910 (Asbury C, 12 May 2011) at para. 8.
[6] ibid.
[7] Zornada v St John Ambulance Australia (Western Australia) Inc. (2013) 237 IR 48 [39].
[8] Merribee Pastoral v ANZ Banking Group (1998) 193 CLR 502, 513; cited in Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group [2011] FWA 2910 (Asbury C, 12 May 2011) at para. 10.
[9] ibid.
[10] ibid.
[11] Devenish v Jewel Food Stores Pty Ltd [1990] HCA 35 (15 August 1990); cited in Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group [2011] FWA 2910 (Asbury C, 12 May 2011) at para. 12.
[12] Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group [2011] FWA 2910 (Asbury C, 12 May 2011) at para. 21.
Updated time
Last updated
15 January 2020
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