An overview of legal procedure & case law
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:
Representatives are not required to be granted permission to appear before the Commission can make an order for costs.[1]
The Commission cannot make an order under s.401 for costs incurred in an appeal of an unfair dismissal decision.[2]
This requires a positive act on the part of the lawyer or paid agent, not merely an absence of discouragement.[3]
[1] Explanatory Memorandum to Fair Work Amendment Bill 2012 at para. 179.
[2] Selcuk v Maddison & Associates Pty Ltd [2015] FWC 4390 (Ryan C, 30 June 2015); Church v Eastern Health [2014] FWCFB 810 (Ross J, Hatcher VP, Wilson C, 4 February 2014) at para. 29, [(2014) 240 IR 377].
[3] Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2011] FWA 651 (Bartel DP, 31 January 2011) at para. 22.