Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against a decision of Commissioner Durham at Brisbane on 11 July 2025 in matter number U2025/3774- Jurisdictional objection to unfair dismissal application - Commissioner determined that applicant met the minimum employment period in 383 of the Fair Work Act 2009 (Cth) - Application for a stay pending appeal - Stay refused.

• [1] Meera Thomas is a former casual employee of Affinity Nursing Recruitment Pty Ltd. Ms Thomas has applied to the Commission under s 394(1) of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. Affinity Nursing objected to the application on grounds that Ms Thomas had not completed the minimum employment period for the purposes of ss 382(a) and 384(2)(a) of the Act. The jurisdictional objection was determined as a preliminary matter. On 11 July 2025, Commissioner Durham issued a decision dismissing the jurisdictional objection. On 1 August 2025, Affinity Nursing filed a notice of appeal in which it seeks permission to appeal, and to appeal, the decision and a stay pending appeal. The appeal has been allocated to me for the purpose of dealing with the stay application.

• [2] The notice of appeal indicated that Affinity Nursing seeks a stay of the decision of the Commissioner, a hearing in relation to Ms Thomas' unfair dismissal application listed on 16 September 2025 and directions made by the Commissioner for the filing of evidence and submissions in preparation for that hearing. On 5 August 2025, my chambers wrote to the parties to advise that my preliminary view was that the appropriate course was for Affinity Nursing to first approach the chambers of the Commissioner if it wished to have the hearing and directions vacated. On 6 August 2025, Affinity Nursing formally requested that the Commissioner vacate the hearing and directions with respect to the substantive unfair dismissal application pending the outcome of the appeal. Later in the day on 6 August 2025, the chambers of the Commissioner communicated by email that:

As discussed during the conference on 30 July 2025, the Commissioner is not minded to vacate the directions and hearing on the basis that no stay has been granted.

As such, the directions and hearing remain on foot.

• [3] Affinity Nursing then communicated that it pressed its application for a stay. A hearing was held in relation to the stay application on 8 August 2025.

• [4] At the hearing of the stay application, counsel for Affinity Nursing informed the Commission that it only seeks a stay of the decision of the Commissioner and did not, directly at least, seek a stay of the directions made by the Commissioner or that the hearing scheduled for 16 September 2025 be vacated. However, counsel submits that a stay of the decision will have the "practical consequence" of vacating the directions and hearing.

• [5] The power to grant a stay pending the hearing and determination of an appeal lodged under s 604(1) of the Act is contained in s 606(1), which provides:

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

• [6] Section 606(1) refers only to a stay of "the decision" which is subject of the appeal or review. A number of decisions of the Commission have cast doubt upon the capacity of the Commission to grant orders in the nature of a stay of proceedings under s 606(1). In Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276, Hatcher VP (as his Honour then was) dealt with an appeal from certain procedural rulings made at first instance. Having set out the usual principles with respect to the granting of a stay, his Honour observed:[1]

However the application of those principles is necessarily subject to it being demonstrated at the outset by the applicant for a stay that there is an operative decision with ongoing or future effect capable of being stayed under s.606(1). It is not clear to me that this has been demonstrated here. For example, the CFMEU seeks as part of its stay application that the decision of the Senior Deputy President to refuse an adjournment be stayed. It is not apparent how a stay of such a decision could have any practical effect. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal.3 It appears that, in substance, the CFMEU seeks a stay of the proceedings before the Senior Deputy President pending the hearing and determination of the appeal. Section 606(1) does not provide power to do this. The CFMEU seeks to surmount this difficulty by applying for terms and conditions attaching to the stay order that the proceedings before the Senior Deputy President be adjourned. I doubt that this solves the difficulty, for two reasons: firstly, there must in the first place be a properly founded stay order to which any term or condition under s.606(1) can attach; and secondly the adjournment requirement sought by the CFMEU is not in substance a term or condition of a stay order but an entirely separate order. As for the other procedural rulings made by the Senior Deputy President, it is likewise difficult to identify any practical effect of a stay upon those rulings, since the hearing before the Senior Deputy President has now been completed.

• [7] In Woodside Energy Ltd v Australian Workers' Union [2022] FWC 2573, a stay was sought in connection with an appeal from a decision of a Deputy President of the Commission declining to recuse herself and refusing to vacate directions in relation to an upcoming hearing in the first instance proceedings. That matter was also dealt with by Hatcher VP. His Honour noted:[2]

It is necessary to say at the outset that I do not consider that the grant of the stay sought by Woodside would have any meaningful effect. Woodside submitted that it is possible for an order dismissing or refusing an application to be the subject of a stay; in that circumstance, the effect of the stay would be to restore any previously applicable orders or where, as in this case, there are no such orders, then to restore the status quo ante by bringing about a situation in which there are no operative orders. I reject this submission: the "status quo ante" existing prior to the making of the vacation decision was that the extended directions had been made and were operative. It seems to me that what Woodside seeks in substance is a stay of the entire proceedings before the Deputy President pending the hearing and determination of its appeal. I doubt that s 606(1) of the FW Act empowers this, for the reasons stated in CFMEU v Collinsville Coal Operations Pty Limited.

• [8] In PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash [2024] FWC 1735, a stay was sought in connection with an appeal from a decision to refuse permission for legal representation in ongoing proceedings before a member of the Commission. In that matter, the appellant sought a stay of the decision refusing permission for representation with terms and conditions that a forthcoming hearing of the first instance proceedings be vacated. In relation to that application, I said:[3]

In Collinsville, the current President doubted that such an approach resolved the difficulty for two reasons. First, his Honour observed that there would need to be a properly founded stay order to which such a term or condition could attach. By this I understand his Honour to be referring to the necessity for there to be an operative decision with ongoing or future effect capable of being stayed under s 606(1). In this matter, it is unclear what practical effect would be achieved by staying a decision to refuse the appellant permission to be represented. It would not mean that the appellant was given permission to be represented. At best, it might mean the appellant could renew its application to the Deputy President for permission to be represented. That is something which is open to the appellant in any event. In those circumstances, the decision subject of the appeal does not appear to be one which is capable of being stayed under s 606(1) of the Act.

The second difficulty identified in Collinsville was that the adjournment requirement sought could not properly be described as a term or condition of the stay order and, rather, represented an entirely separate order. Section 606(1) of the Act permits the Commission to order that the operation of the whole or part of the decision be stayed 'on any terms and conditions that the FWC considers appropriate'. The precise scope of the 'terms and conditions' that may be imposed does not appear to have been explored by the Commission.

In my opinion, the intention of the section is that the Commission have the capacity to impose terms and conditions such that the stay will operate only if the condition imposed were met. For example, a condition might be imposed requiring steps to be taken to ameliorate or reduce any prejudice caused by the stay order. A common example is that a reinstatement order may be stayed on condition that the employer pay the dismissed employee his or her usual wages pending determination of an appeal. I do not believe that the 'terms or conditions' contemplated by s 606(1) could convert an order staying a decision to something else or cause it to have an effect beyond staying the decision subject of the appeal. That is the effect of the condition sought by the appellant. It seeks to convert a stay of a decision to a stay of proceedings.

• [9] The decisions in Collinsville, Woodside and PHI suggest that, to obtain a stay, there must be an operative decision with ongoing or future effect capable of being stayed under s 606(1) of the Act. In each of the decisions, the Commission doubted that s 606(1) authorises a stay of proceedings themselves.

• [10] As I have indicated, Affinity Nursing does not press for a stay order which would directly vacate the hearing listed on 16 September 2025 or the directions made by the Commissioner. Affinity Nursing presses only for a stay of the decision to reject its jurisdictional objection. It says that a stay of that decision would have the practical consequence that the hearing and directions are, or would be, vacated. The Commissioner decided that Ms Thomas was protected from unfair dismissal for the purposes of ss 382(b) and 384(2)(a) of the Act and, as such, the Commission had jurisdiction to determine her application. Affinity Nursing submits that a stay of that decision would have the operative effect of staying the finding or conclusion that the Commission has jurisdiction to determine Ms Thomas' application for an unfair dismissal remedy and that the practical consequence is that the directions are vacated. It was somewhat unclear how that would come to pass. Affinity Nursing suggested that could be done by me or by the Commissioner.

• [11] The decision of the Commissioner plainly has practical consequences for the parties because, based on the determination that Ms Thomas had completed the minimum employment period, the Commissioner programmed the application for a hearing on the merits. However, it does not appear to me that the decision itself has any future or ongoing coercive operation. The decision simply records that the Commissioner reached a conclusion as to whether Ms Thomas is protected from unfair dismissal. The Commissioner made no orders as part of her decision other than to dismiss the jurisdictional objection. I am not convinced that it is possible to stay a conclusion reached by a member of the Commission or the dismissal of the jurisdictional objection. A stay of the decision would not mean the Commissioner does not have jurisdiction to determine the unfair dismissal proceedings or otherwise deprive the Commissioner of the capacity or entitlement to continue dealing with the matter.

• [12] Affinity Nursing referred to Woolworth Ltd v Lin [2017] FWC 4298 in which Clancy DP considered an application to stay a decision to extend time for the making of an unfair dismissal application. The appellant sought a stay of the decision together with the directions issued in relation to the substantive application. The Deputy President considered that "[t]he practical effect of a stay would be to pause these directions, which require the preparation of material for a hearing of the unfair dismissal application, until the appeal is determined".[4] The basis of the reasoning is not explained. It is unclear whether, in that case, the appellant separately sought to appeal from the decision to issue directions. If not, it is unclear how a stay would have that practical effect. Other decisions have doubted that an application for a stay of a decision to extend time permits an order to be made staying associated directions for the further conduct of the matter.[5]

• [13] Section 606(1) only permits the Commission to stay the operation of the decision subject of the appeal or review. Affinity Nursing could perhaps have separately appealed the decision to issue directions for the preparation for the hearing of Ms Thomas' unfair dismissal application. However, it has not done so. I am not convinced that a stay of the decision which is subject of the appeal would have the effect sought by Affinity Nursing of vacating the hearing or directions issued by the Commissioner, or any practical effect at all. It might be useful for the Commission to have the capacity to stay proceedings where a decision relating to those proceedings is subject of an appeal. However, that is not how s 606(1) is framed.

• [14] In any event, I am not satisfied that a stay should be granted having the effect sought by Affinity Nursing even if that is possible. It is well-settled that before exercising the discretion to grant a stay, the Commission will ordinarily require that the appellant has demonstrated an arguable case, with some reasonable prospect of success both in respect of permission to appeal and the substantive merits. In addition, the balance of convenience must weigh in favour of the decision subject to appeal being stayed.

• [15] The notice of appeal contains five grounds of appeal. Counsel for Affinity Nursing emphasised two grounds: first, that the Commissioner erred in finding that Ms Thomas had a subjective expectation of ongoing employment for the purposes of s 384(2)(a)(ii) of the Act in the absence of evidence; and, second, that the Commissioner erred in finding that Ms Thomas was continuously employed despite gaps between periods of casual engagement and an alleged contractual stipulation that each engagement constituted a separate contract of employment. I have some doubt that the first of those grounds has merit. As I understand the evidence, Ms Thomas had already been offered a further engagement prior to being told that, due to unsatisfactory performance, she would be removed from the register. However, I accept that the second ground gives rise to an arguable case on appeal with some reasonable prospects of success, although it may require the Full Bench being willing to revisit existing authority.[6]

• [16] As to the balance of convenience, Affinity Nursing submits that it is undesirable for the parties to be required to incur the costs and inconvenience in preparing for a substantive hearing that might, if the appeal is successful, be unnecessary. It refers to the fact that there is overlap between the directions for the preparation of evidence and submissions for the substantive hearing and the present appeal. Affinity Nursing further notes that the appeal has been listed in September and any delay resulting from a stay is likely to be short. Ms Thomas opposes a stay and says that she wishes the unfair dismissal proceedings to continue notwithstanding Affinity Nursing seeking to appeal in relation to the minimum employment period issue.

• [17] Whether it is appropriate for the underlying proceedings to continue where a party seeks permission to appeal with respect to a preliminary jurisdictional issue is likely to involve balancing a range of considerations. The cost and inconvenience of preparing for, and possibly conducting, substantive proceedings that might, if the appeal is successful, prove to be wasted will need to be balanced against the entitlement of an applicant to have proceedings heard in the usual course. The extent of the cost and effort likely to be involved in preparing the substantive matter for hearing, and the likely complexity and duration of any hearing, will be relevant as will any prejudice that might be caused to the applicant by any delay in the substantive proceedings.

• [18] I have some sympathy for the submission of Affinity Nursing that it will be forced to incur costs which might prove to be unnecessary. I am also sympathetic to Ms Thomas' desire to have the proceedings determined as quickly as possible. Ultimately, in my opinion, the matter is best determined by the Commissioner. The Commissioner has carriage of the proceedings and greater knowledge of the background to, and nature of, the issues raised. The Commissioner is better placed than I am to assess whether it is appropriate to proceed with the substantive matter and should be permitted to make that determination. In that regard, I note that the substantive matter is listed only for a one-day hearing and the issues appear to be limited. The Commissioner is evidently satisfied that it is appropriate to proceed. I consider it was at least open to the Commissioner to reach that view. I am not convinced that the balance of convenience favours a stay or that I should, as a matter of discretion, grant a stay even assuming it would have the effect sought by Affinity Nursing.

• [19] The application for a stay is refused.

V Bulut, of counsel, instructed by Dentons for the appellant.

[1] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11].

[2] Woodside Energy Ltd v The Australian Workers Union [2022] FWC 2573 at [14].

[3] PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash [2024] FWC 1735 at [34]- [36].

[4] Woolworth Ltd v Lin [2017] FWC 4298 at [2].

[5] Certis Security Australia Pty Ltd v Singh [2023] FWC 2057 at [11].

[6] Shortland v Smiths Snack Foods Pty Ltd [2010] FWAFB 5709; (2010) 198 IR 207 at [12]- [13].

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