1 Fair Work Act 2009 s.611 - Costs Keelan Parker v Equipment Specialists Australia Pty Ltd (C2025/6350) COMMISSIONER SIMPSON BRISBANE, 7 APRIL 2026 Application for costs under ss.611 and 375B – s.365 application – costs not ordered – application dismissed. [1] Mr Keelan Parker (Mr Parker/the Applicant) made an application to the Fair Work Commission (the Commission) seeking an order for costs against Equipment Specialists Australia Pty Ltd (the Respondent) pursuant to ss.375B and 611 of the Fair Work Act 2009 (Cth) (the Act). [2] The application is made in the context of an application to deal with contraventions involving dismissal made under s.365 of the Act filed by Mr Parker on 1 July 2025. [3] The Applicant was represented by Mr Randall Hart of Recover Legal in the substantive case, and in this costs matter. The Respondent was represented by Mr Adrian Hallewell of Hallewell Law in the substantive matter and in this costs matter. Procedural background between the parties [4] The Applicant’s s.365 application was filed on 1 July 2025. [5] The Applicant’s application was objected to on the basis that the Applicant was not dismissed but instead resigned. On 1 September 2025, I determined to dismiss the jurisdictional objection.1 [6] On 16 September 2025, the Applicant filed the application for costs. Relevant Legislation [7] The Applicant’s application for costs against the Respondent relied in part on s.375B of the Act, which provides: “375B Costs orders against parties [2026] FWC 1172 DECISION [2026] FWC 1172 2 (1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if: (a) an application for the FWC to deal with the dispute has been made under section 365; and (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute. (2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377. (3) This section does not limit the FWC’s power to order costs under section 611.” [8] Section 375B was inserted into the Act by the Fair Work Amendment Act 2012. Relevantly, the Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) states as follows: “New section 375B allows the FWC to order costs against a party to a general protections dismissal dispute (the first party) if it is satisfied that the first party caused the other party to the dispute to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the dispute. New section 375B is similar to the costs orders that are available against parties in relation to unfair dismissal matters (see section 400A). 57. This power to award costs is in relation to the dispute before the FWC and does not include costs associated with a general protections court application. 58. The power to award costs under new section 375B is not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party. 59. The FWC’s power to award costs under subsection 375B(1) is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. 60. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party. 61. New subsection 375B(2) provides that the power to award costs against one party in these circumstances is only exercisable if the other party to the dispute makes an application in accordance with section 377. New subsection 375B(3) makes it clear that [2026] FWC 1172 3 the new power to award costs under subsection 375B(1) operates in addition to subsection 611(2), which enables the FWC to make costs orders against a person in certain circumstances, such as where an application is made vexatiously or without reasonable cause.” [9] Secondly, the application for costs against the Respondent was made pursuant to s.611 of the Act, which stipulates as follows: “ 611 Costs (1) A person must bear the person’s own costs in relation to a matter before the FWC. (2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if: (a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or (b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success. Note: The FWC can also order costs under sections s376, 400A, 401 and 780. (3) A person to whom an order for costs applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1).” [10] Section 611 was included in the initially passed version of the Act. Submissions [11] The Applicant submitted that the Respondent and the Respondent’s representative acted unreasonably when failing to withdraw the jurisdictional objection. The Applicant’s representative wrote on the following occasions seeking withdrawal to enable the matter to proceed to conciliation: (a) By email dated 31 July 2025 to the then unrepresented Respondent; (b) By email dated 7 August 2025 to the then unrepresented Respondent; (c) By email dated 26 August 2025 to the Respondent’s representative, after receipt of the Respondent’s material and having lodged the Applicant’s Material. [12] The Applicant submitted it was unreasonable for the Respondent and the Respondent’s representative not to respond on any of these occasions, particularly given the material that the Respondent ultimately submitted to the Commission. [2026] FWC 1172 4 [13] The Respondent denies that the email from the Applicant’s representative to the Respondent’s representative on 26 August 2025 can be relied upon as some type of offer of compromise that the Commission should take account of in this application for costs. The Respondent states that it demanded the Respondent pay costs regardless and there was no real compromise in that offer. The Applicant is now seeking $4,400 for its costs which is less than it claimed in that email. The Respondent did not comment on its omission to respond to this correspondence, which the Applicant relies upon. [14] The Respondent submitted the test for ‘without reasonable cause’ is that the application (or response): • is ‘so obviously untenable that it cannot possibly succeed’ • is ‘manifestly groundless’ • is ‘so manifestly faulty that it does not admit of argument’ • ‘discloses a case which the Court is satisfied cannot succeed’ • ‘under no possibility can there be a good cause of action’2 [15] The Applicant highlighted my ex-tempore decision delivered at the conclusion of the cross-examination and submission of the parties, where I stated at paragraph [7] of the transcript: “I have listened to the cross-examination of Mr Parker and the evidence around the fact that as the representative, Mr Hallewell for the Respondent, sought to confirm with him that he prearranged an arrangement for his wife to come and collect him, which would indicate he had made a decision to leave that afternoon regardless of whether or not he would be granted any permission to take leave, and in the end the applicant did not really dispute that that was the state of mind that he had reached. But objectively assessed, even taking that into account, it does not assist the respondent in any significant way, because the evidence simply does not amount to a communication of an intent by Mr Parker to permanently end the employment relationship by resigning.” [16] The Applicant further highlighted my comments at paragraph [14] of the transcript, following my summary of the evidence: “I make those comments as obiter, because in my view even had the Respondent succeeded in its argument that a resignation had in fact occurred it would have still been regarded as a termination within the meaning of section 386 for the reasons that I have given.” [17] The Applicant submitted that my decision represented a conclusion demonstrating that the Respondent had no real prospects of success. The Applicant argued that the decision had the effect that even if the Respondent had succeeded in its arguments, the Respondent’s jurisdictional objection would have failed. [2026] FWC 1172 5 [18] The Respondent submitted that the jurisdictional objection was not made vexatiously, and alleges that the Applicant does not say and has never said that it was. It alleges that the jurisdictional objection was made with reasonable cause, with reasonable prospects of success, and did not constitute “an unreasonable act”. An application or response is not without reasonable cause just because the court rejects a person’s arguments.3 [19] The Respondent further argues that a proceeding is not to be classed as being instituted without reasonable cause simply because it fails, but rather in circumstances where on the Applicant’s own version of the facts, it is clear that the proceeding must fail.4 [20] The Applicant submitted that the Respondent did not address the issue of termination within the meaning of s.386 in its submission, contrary to the directions. The Applicant submitted this demonstrates the Respondent was unable to do so in a meaningful and genuine way. The Applicant submitted that the Respondent had no reasonable prospects of addressing s.386 on the material filed, and failing to address the directions was an unreasonable act or omission, committed in recognition of the vexatious nature of its objection. [21] The Respondent emphasises that a finding that an application (or response) has no reasonable prospects of success should be reached with extreme caution and should only be reached when an application or response is ‘manifestly untenable or groundless’.5 [22] The Respondent relies on Mark O’Connell v Floor Grinding Services Pty Ltd,6 where those principles were applied by Commissioner Johns in dismissing an application for costs against a respondent employer who made an unsuccessful jurisdictional objection in an unfair dismissal application, including on the grounds that the applicant employee was not dismissed, but had resigned. The Respondent directed attention to the Commissioner’s comments that because he found against the Respondent, did not mean that its defences were without reasonable cause.7 It is not unreasonable to have lost an argument.8 [23] In that matter, the Commissioner provided that the outcome depended on the consideration of all the evidence, including that given at the hearing, even when the documentary evidence available prior to the hearing pointed towards a continuing relationship and not to a resignation.9 [24] The Commissioner found that the defences of the Respondent in that matter were not so obviously untenable that they could not have succeeded, even though the evidence at the hearing did not come out that way,10 and even though “[i]n the face of the documentary evidence the Respondent had a harder road to travel to convince me of its interpretation of the facts”.11 Commissioner Johns further stated that following the jurisdictional objection decision, the Respondent’s defences were likely to fail. At all times the Commissioner had an open mind that the documentary evidence which was strongly against the Respondent might be overcome by the value of oral evidence in cross-examination, and the failing of this oral evidence to do so did not render the defences unreasonable.12 [25] The Applicant submitted that the Respondent’s failure to discharge its duty prior to the termination of the Applicant’s employment was an unreasonable act or omission and the [2026] FWC 1172 6 conduct continued with the filing of and failure to withdraw the Respondent’s jurisdictional objection. [26] My decision was delivered directly after the cross-examination of the witness evidence and material of the Respondent. The Applicant submits that this demonstrates that it was unnecessary to detail the factual disputes. However, the Applicant submitted that the Respondent deliberately omitted evidence and documents from its material to further its position. The Applicant asserted that those unreasonable acts occurred prior to and after the Respondent had engaged a representative. The evidence the Applicant alleges was deliberately omitted by the Respondent and evidence put forward not relevant to the directions includes: (a) The omission in Ms Perkins’ statement information regarding the decision-making process which she wrote to the Commission by email dated 4 August 2025. (b) The omission in Ms Perkins’ statement regarding receipt of the email from the Applicant and Ms Perkins issuing the direction to another staff member (Pascoe) to direct the Applicant to obtain a medical certificate. (c) The omission in Ms Perkins’ statement and Ms Pascoe’s statement failing to address the contemporaneous recording. (d) The omission in Ms Perkins’ statement regarding any matters relevant to s.386 as requested in the directions issued by my Chambers. (e) The Respondent providing two witness statements that do not mention or refer to any ‘resignation’. (f) The omission in Ms Perkins’ statement regarding the managerial steps taken after the meeting on 10 June 2025. (g) The omission in Ms Pascoe’s statement failing to address her significant change in evidence and the failure to previously address matters with WorkCover Queensland. (h) The omission in Ms Perkins’ statement that no internal correspondence was sent regarding any resignation (cross-examination evidence by Mr William Dolan who provided a statement which was clearly designed to be limited). [27] The Applicant submitted that the Respondent caused the Applicant to incur costs because of unreasonable acts or omissions by the Respondent and the Respondent’s representative in connection and continuation of the matter, namely pressing the jurisdictional objection, failing to appropriately address the directions I issued in its material, failing to withdraw the jurisdictional objection, failing to provide statements which addressed the alleged factual disputes, and omitting key matters. [28] The Respondent asserted that there was a serious contest about whether the Applicant resigned from his employment on 10 June 2025. The Respondent yet again submitted that it genuinely believed that the Applicant had resigned, for the reasons outlined in the original decision. The Respondent argues that it was perfectly reasonable for it to put its allegations and [2026] FWC 1172 7 evidence to the Commission, to test the Applicant’s allegations and evidence, and to argue what findings the Commission should make in the unique circumstances of the matter. [29] The Applicant submits that regardless of the arguments the Respondent put forward, the record demonstrates that at all times prior to and after 11 June 2025, the Respondent acted unreasonably. This includes in failing to address or explain in its submissions or evidence before the Commission: the discussion or direction given by Ms Perkins to Ms Pascoe to request the Applicant provide a medical certificate on 11 June 2025, the discussions which took place between Ms Perkins and her husband, Mr Perkins, on 11 June 2025, after the Applicant was requested to provide a medical certificate, and the failure in the file note/email to the Applicant sent on 11 June 2025 to include reference to any resignation, notice period or other matters consistent with a clear resignation being received. Clearly, the words “you think about our discussion and decide if you can continue to work at ESA” is inconsistent with the Applicant having allegedly resigned the day prior. [30] The Applicant further relies on the omission of the Respondent to provide the Commission with submissions and any documents or material it intended to rely upon relevant to s.386(1) as per the directions prior to the jurisdictional objection hearing. [31] The Applicant submitted that the Respondent’s failure to address these matters was a continuation of the unreasonable conduct of the Respondent from 11 June 2025 onwards. On 31 July 2025, the Applicant’s representatives wrote to the Respondent following the filing of the Respondent’s Form F8A Response to general protections application involving dismissal on 30 July 2025. The Applicant invited the Respondent to withdraw the jurisdictional objection and put the Respondent on notice that it may be required to apply for costs orders, noting the inconsistencies with the Respondent’s evidence and witness evidence, and its failure to address matters in a reasonable way, particularly omissions relating to WorkCover Queensland. [32] On 7 August 2025, the Applicant wrote to the Respondent requesting again that it withdraw the jurisdictional objection. The Applicant never received any response to the requests made to the Respondent to withdraw the jurisdictional objection, either the 31 July or the 7 August request. [33] Instead of responding to the Applicant, the Respondent wrote to the Commission and explained the litany of steps it previously took regarding a former employee which were not taken with the Applicant. The Applicant asserted that even as a self-represented Respondent, it was unreasonable for the Respondent to fail to consider the matter carefully. The Respondent makes first reference to having contacted their lawyer to discuss the matter on 8 August 2025. This follows my Chambers issuing directions and the Respondent failing to respond to the Applicant’s request to withdraw its jurisdictional objection. [34] The Respondent then engaged a representative at some point in time between 7 August 2025 and 18 August 2025. Hallewell Law wrote to the Commission at 5:45pm on 18 August 2025. There was no correspondence from the Respondent or Hallewell Law to the Applicant or Recover Legal in response to the request to withdraw the jurisdictional objection. [35] The Respondent filed its material on 18 August 2025. The Applicant emphasises that the Respondent did not meaningfully respond to the directions issued and did not address [2026] FWC 1172 8 matters fully with the Commission. The Applicant had no alternative but to file material addressing the jurisdictional objection as the Respondent had put it. [36] The Applicant submits at its core, it was unreasonable for the Respondent to not withdraw the jurisdictional objection. The failure by the Respondent to do so resulted in the Applicant incurring significant costs. The Respondent acted unreasonably both when it was self-represented and after obtaining representation. [37] The Respondent was self-represented for a period of time up until early August. The Applicant asserted that self-represented parties should be given at least “some benefit of the doubt” however, the Respondent’s conduct in this matter was unreasonable beyond this standard. The Respondent acted unreasonably by failing to respond reasonably to the Applicant while he was an employee, failing to pay the Applicant’s entitlements, sending unseemly correspondence to the Applicant and third parties, failing to respond to reasonable requests, either directly or by failing to provide instructions, and failing to provide full and comprehensive material to the Commission. [38] In particular, the Applicant submitted that its email dated 10 July 2025 was particularly unreasonable. The Applicant submitted that it is self-evidently unreasonable, containing concerning comments such as “I’ve been waiting for your email” and “system is corrupt and wrong”. The Respondent also claimed the Applicant will have to “answer to God”, which is obviously unreasonable irrespective of the author or recipient’s religious beliefs. [39] The Applicant submitted that for the period that the Respondent was represented, the Respondent acted unreasonably by failing to withdraw the jurisdictional objection, failing to seek clarification from the Applicant’s representatives if, as was put to the Commission, the material was unclear, and finally by failing to ensure that the factual dispute between the parties was reduced by having their representatives properly respond to directions and provide material and evidence relevant to management decisions, the timing of management decisions and internal discussions which were absent from the material filed. [40] As a result of the alleged unreasonable acts from 11 June 2025 onwards, the Applicant incurred significant costs in defending the jurisdictional objection. Further, the Applicant submitted that once all the material was filed with the Commission, the Respondent had no reasonable prospects of success. The Respondent ought to have withdrawn the objection once presented with the two authorities in recognition of their failure to meet the duty on 11 June 2025 or thereafter, when the Applicant made clear he did not resign. [41] An unreasonable act or omission can include a failure to discontinue a general protections dispute application or a failure to agree to terms of settlement.13 What is unreasonable will depend on the circumstances.14 It is intended that costs only be ordered where there is clear evidence of unreasonable conduct.15 [42] The Respondent submits that the Applicant bringing and articulating two general protections applications opened up entirely reasonable grounds for the jurisdictional objection. The Respondent emphasised that, as it raised in the jurisdictional objection submissions, the Applicant filed the original application under s.365 while simultaneously filing a ‘non- dismissal application’ under s.372. [2026] FWC 1172 9 [43] The Respondent submitted that, rather than this being a response to the Applicant’s confusion as to whether he was dismissed due to the substance of the Respondent’s communication, it demonstrates that the Applicant was uncertain about whether he was entitled to proceed with the original application. As it was put in the original matter, the Respondent believes that it was “betrayed the Applicant’s lack of conviction in his entitlement to apply under s.365.” The Applicant said that filing applications under both sections was necessary “to protect his interests” but did not elaborate. The Respondent asserts that in doing so, the Applicant opened up a reasonable basis for the Respondent to make the jurisdictional objection. The Respondent did not articulate why the Applicant’s application under s.372, which indicated that it was not clear that the Applicant’s employment had ended, made it reasonable for the Respondent to assert that the Applicant had resigned. [44] The Respondent also argued that the originating application stated expressly that “[t]he adverse action by the Respondent was the failure to pay the Applicant’s entitlements”. The Respondent was entitled to argue, as it did, that the Applicant was not entitled to apply under s.365 because the Applicant himself did not say in the dismissal application that the dismissal was the adverse action. This argument was pressed at the hearing of the jurisdictional objection on 1 September 2025. The parties brought arguments about that point before me, but I did not determine those grounds, as the hearing related to the jurisdictional objection and not the merits of the matter. [45] The Respondent disagrees with the Applicant’s submission that the Respondent failed to comply with directions, and that that was unreasonable. In particular, the Applicant says that the Respondent did not address the issue of termination within the meaning of s.386. The Respondent asserts that the relevant directions were made on 7 August 2025 when the parties were notified that Chambers may set out directions, rather than on 8 August 2025 when directions were issued to the parties. This initial programming email did not contain directions and did not include any reference to s.386. The Respondent asserts that the Applicant is mistaken. The Respondent alleges that it did comply with the directions, despite being unable to identify them. The Applicant also purports to rely upon ‘unreasonable acts’ of the Respondent that occurred before the jurisdictional objection was raised. [46] The Respondent submits that the Applicant consulting with a barrister is evidence that the jurisdictional objection was not unreasonable. Consideration [47] The directions issued by my Chambers on 8 August 2025, seeking submissions on the jurisdictional objection explicitly directed the parties to address s.386(1) of the Act. The email to parties on 7 August 2025 did not issue directions, nor did it claim to issue directions, but instead put parties on notice regarding what directions may be issued. [48] In relation to the application for costs under s.611 there is no basis to conclude the Respondent’s response to the application was vexatious. I am satisfied the Respondent held the view, wrongly, as I concluded, that the Applicant’s conduct amounted to resignation. [2026] FWC 1172 10 [49] As the Respondent has submitted, a finding that an application (or response) has no reasonable prospects of success should be reached with extreme caution and should only be reached when an application or response is ‘manifestly untenable or groundless’.16 [50] I adopt the view of Commissioner Johns in Mark O’Connell v Floor Grinding Services Pty Ltd,17 that merely because I found against the Respondent, it does not mean that its objection had no reasonable prospects. This was a matter that was ultimately assisted by the giving of evidence to reach a conclusion. [51] The failure of the Respondent to reply to the Applicant’s emails and instead to rely on responses to the Commission was inappropriate. However, it was not so unreasonable as to warrant an order of costs in the particular facts of this case. The Explanatory Memorandum included the following language regarding the power under s.375B. “…the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.” [52] As the Applicant submits, at its core, the case for costs is that it was unreasonable for the Respondent to not withdraw the jurisdictional objection, and the Respondent acted unreasonably both when it was self-represented and after obtaining representation. [53] It is notable that the Applicant made a decision to file both a s.372 application, and a s.365 application given the circumstances surrounding the ending of the employment relationship. The Applicant defended this approach as appropriate to protect the Applicant’s interests. [54] I accept that the Applicant’s case always appeared the stronger of the two, however the Respondent’s wish to have the Commission determine the jurisdictional issue by a hearing in this case was not so unreasonable as to warrant the ordering of costs against it for doing so. Conclusion [55] The Application for costs is dismissed. COMMISSIONER Printed by authority of the Commonwealth Government Printer [2026] FWC 1172 11 <PR798373> 1 PR791286. 2 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129; cited in Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (2011) 210 IR 370 [17]. 3 R v Moore; Ex Parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, 473; cited in Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (2011) 210 IR 370 [20]. 4 Zornada v St John Ambulance Australia (Western Australia) Inc. (2013) 237 IR 48 [35]. 5 Baker v Salver Resources Pty Ltd [2012] FWAFB 4014 (unreported, Watson SDP, Drake SDP, Harrison C, 27 June 2011) [10]; citing Deane v Paper Australia Pty Ltd (unreported, AIRCFB, Giudice J, Williams SDP, Simmonds C, 6 June 2003) PR932454 [7]. 6 [2018] FWC 7675. 7 [28]. 8 [38]. 9 [29]-[30]. 10 [34]. 11 [36]. 12 [38]. 13 Explanatory Memorandum, Fair Work Amendment Bill 2012 [170]. 14 Explanatory Memorandum, Fair Work Amendment Bill 2012 [171]. 15 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 [23]. 16 Baker v Salver Resources Pty Ltd [2012] FWAFB 4014 (unreported, Watson SDP, Drake SDP, Harrison C, 27 June 2011) [10]; citing Deane v Paper Australia Pty Ltd (unreported, AIRCFB, Giudice J, Williams SDP, Simmonds C, 6 June 2003) PR932454 [7]. 17 [2018] FWC 7675.