Fair Work Act 2009

s.604 - Appeal of decision

Commonwealth of Australia (Bureau of Meteorology) and others

Application for a stay under s 606 - application refused

• [1] Earlier today, I refused an application by Jacob Lye for a stay under s 606 of the Fair Work Act 2009 (Act). The stay was sought in connection with Mr Lye's appeal from a decision of Commissioner Redford ( [2025] FWC 3061) not to recuse himself from further dealing with his antibullying application. Mr Lye sought a stay of the Commissioner's refusal to recuse himself, and of 'all subsequent procedural directions and actions', including the further hearing of his application before the Commissioner tomorrow. I dismissed the stay application for the following reasons.

• [2] Section 606 of the Act provides that, if the Commission hears an appeal from a decision, it may order that the operation of the decision be stayed until the appeal is determined. A stay suspends the operation of the decision. Insofar as Mr Lye's stay application was directed at the Commissioner's refusal to recuse himself, I considered that there was nothing to stay. It makes no sense to suspend a decision not to do something, because it would not change anything. In this case, the Commissioner would still remain seized of the matter. At the stay hearing, Mr Lye said that his appeal and stay application were also directed at the Commissioner's decisions, or failure to make decisions, concerning reasonable accommodations for his disabilities, but these too were negative decisions that cannot logically be stayed.

• [3] But even if one takes the view that these negative decisions have operational effect because they facilitate the further conduct of the proceeding, and that they are somehow capable of being stayed, I considered that Mr Lye has failed to present an arguable case of error on the part of the Commissioner. The recusal decision appears to me to reflect an entirely orthodox application of the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63. And in my view there is no arguable basis to contend that the Commissioner erred by failing to make reasonable accommodations. Mr Lye submits that the Commissioner ought to have made different decisions, but this does not speak to any arguable error.

• [4] Insofar as Mr Lye sought to stay all subsequent procedural directions and actions of the Commissioner, including his decision to further hear the matter tomorrow, it was clear that this travelled beyond what s 606 permits, which is to stay the operation of a decision that is under appeal. These other decisions are not the subject of Mr Lye's appeal.

• [5] Further and in any event, Mr Lye's appeal appears to me to lack any utility, because he has now been dismissed, and he is therefore not at any risk of being bullied at work. The existence of such a risk is a precondition to the Commission's power to make orders under s 789FF. Mr Lye suggested that the employment relationship had survived his dismissal. I find this to be illogical and contrary to authority. Given the apparent absence of utility in the appeal, it is difficult to see any basis on which permission to appeal would be granted.

• [6] Finally, while it was not necessary to consider the balance of convenience, I did not consider that it favoured a stay.

• [7] After the stay hearing, Mr Lye submitted a note raising various matters and inviting me to reconsider my disposition of the stay application. None of the matters raised warrants a reconsideration of my decision.

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