This passage from a decision of the Fair Work Commission in a recent appeal raises some interesting observations about the issue of costs orders in Commission proceedings.
“[49] We accept that if a respondent puts an applicant to the cost of defending a jurisdictional objection that was not reasonably arguable, that will enliven the discretion to make a costs order under either ss 375B(1) or 611(2) of the Act. Respondents should be mindful of this when deciding whether to raise jurisdictional objections. We also consider that parties should be encouraged to properly consider the provisional views expressed by a member of the Commission. Parties should be encouraged to withdraw a jurisdictional objection in such circumstances. The mere fact that a jurisdictional objection has been withdrawn does not necessitate the conclusion that the objection lacked reasonable prospects of success when made. In any event, in this case, the appeal grounds are not made out. Mr Roberts has not established that the Commissioner erred in the manner alleged.”
Roberts v Quantum-Systems Pty Ltd and Others [2026] FWCFB 4 delivered 7 January 2026 per Gibian VP , Saunder DP and Butler DP