Case: BGC Contracting v CFMEU (No 2) [2005] FCA 908 ; (2005) 143 FCR 409
Outcome: followed
Etheridge Shire Council refers, in particular, to the decision of French J (as he then was) in BGC Contracting v CFMEU (No 2) [2005] FCA 908 ; (2005) 143 FCR 409 ( BGC Contracting ), where his Honour found that s 824 applied. In BGC Contracting , the applicant instituted proceedings seeking declarations that representatives of the CFMEU, a state registered union, had no right under the Industrial Relations Act 1979 (WA) (the IRA) to enter a construction site for an ammonia plant in Western Australia. The basis for that application was that the workers at the site were employed under Australian Workplace Agreements made under the Workplace Relations Act . Rights of entry created by that Act in respect of those employees were said to be inconsistent with the IRA, and therefore rendered inoperative the rights of entry conferred under the IRA, in so far as they purported to apply to the construction site. The application was dismissed and the CFMEU sought an order for costs, which was opposed by the applicants and the Minister. The respondents contended that the proceedings were proceedings in a matter arising under the Workplace Relations Act and that the then s 347 of the Workplace Relations Act confined the power to award costs to circumstances in which the proceedings had been instituted frivolously or vexatiously. French J concluded that the proceedings were proceedings in a matter arising under the Workplace Relations Act , and, for that reason, no order for costs should be made. The applicants seek to distinguish the BGC Contracting case submitting that: In BGC Contracting , the rights sought to be invoked were rights conferred upon an employer bound by that Act, in respect of employees who were undoubtedly the subject of regulation by that Act, by reason of the existence of AWAs lawfully made under that Act. That matter was, so the applicants submit, clearly one to which the Workplace Relations Act applied. In this case, however, the applicants argue the Workplace Relations Act had no application to the first respondent at all, and the matter did not, therefore, arise under the Act. The answer to these questions, in my judgment, relies on a precise identification of the "matter" in the present case. "Matter" in that sense, means the judicial controversy between the parties. The applicants asserted that the Etheridge Shire Council was not a constitutional corporation, and was therefore not an "employer" under the Workplace Relations Act , and was therefore not entitled to register a Workplace Agreement with its employees pursuant to the Workplace Relations Act . In my judgment, each proceeding was a "matter arising under the Workplace Relations Act ". The Etheridge Shire Council asserted that it was an "employer" under the Workplace Relations Act , being a constitutional corporation and therefore was entitled to register the Workplace Agreement, pursuant to the Workplace Relations Act . The right claimed by the Etheridge Shire Council, and denied by the respective applicants, was a right conferred by an order of the Workplace Relations Act , and therefore arose under that Act. It follows that the prohibition against the ordering of costs contained in s 824(1) applies in each of the present proceedings. It does not affect my conclusion that the exception referred to in s 824(1) is directed at the "institution" of proceedings. The Etheridge Shire Council did not institute either proceeding. It therefore follows that it could not have instituted either proceeding vexatiously, or have instituted either proceeding without reasonable cause. As a respondent in each proceeding, it has an immunity from an order to pay costs, if either proceeding was a matter arising the Workplace Relations Act . In my opinion, each proceeding was such a matter. That conclusion is consistent, in my view, with the conclusion and reasoning of French J in the BGC Contracting case. That is sufficient to dispose of the application for costs. For completeness, were my conclusion to be contrary to that expressed above, the contention that each matter was something of a "test" case, would not be a basis on which I would refrain from following the usual principle that costs follow the event.