Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision of Commissioner Mirabella to issue a certificate under s 368(3) of the Fair Work Act 2009 (Cth) in Matter Number C2025/5959 - Application for a stay pending appeal - Whether order for a stay would have any utility - Stay refused.

• [1] Joshua Zhou has filed a notice of appeal seeking permission to appeal, and to appeal, with respect to a decision of Commissioner Mirabella to issue a certificate under s 368(3) of the Fair Work Act 2009 (Cth) (the Act). The certificate was issued in proceedings brought by I-Ping Yang under s 365 alleging that he had been dismissed in contravention of Part 3-1 of the Act. The certificate was issued following a conference conducted by the Commissioner. In the notice of appeal, Mr Zhou contends that he was denied procedural fairness as a result of an interpreter who was assisting at the conference leaving before the session concluded, that he was pressured into not pressing a jurisdictional objection, that he was removed prematurely from the conference and that the certificate issued by the Commissioner identified the incorrect legal entity.

• [2] The notice of appeal filed by Mr Zhou seeks a stay pending appeal under s 606 of the Act. The application for a stay was listed before me today. Mr Zhou explained that he seeks a stay in order to ensure that Mr Yang does not, or is not able to, commence a general protections court application based on the Commissioner having issued a certificate. Mr Boon, of the Migrant Workers Centre, appeared for Mr Yang. Mr Boon supported the application for a stay although he acknowledged that an issue arose as to what practical effect, if any, a stay order would have in the circumstances.

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

• [4] At the stay hearing, I raised with the parties that I had a concern as to whether making an order staying the decision to issue a certificate had any utility. The source of my concern is as follows. The function of the Commission in dealing with an application under s 365 is limited. The Commission must deal with the dispute (other than by arbitration).[1] The Commission may deal with the dispute by mediation or conciliation or making a recommendation or expressing an opinion.[2] If the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, it must issue a certificate to that effect.[3] Once the certificate has been issued the applicant can take their dispute to court or, with consent of the parties, the dispute can be arbitrated by the Commission.[4]

• [5] For the obligation to issue a certificate to arise, the Commission must be satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful for the purposes of s 368(3). As presently advised, I am inclined to accept that a determination that the grounds for a certificate to be issued under s 368(3) exist is a "decision" capable of being subject of an appeal under s 604 of the Act. Section 598(1) indicates that a reference in Part 5-1 to a "decision of the FWC" include a decision of the Commission "however described". Whilst s 598(1) excludes "an outcome of a process carried out in accordance with subsection 595(2)", which deals with processes of "mediation or conciliation", a decision to issue a certificate is not, in my opinion, an outcome of that process.

• [6] However, the Commission will only grant a stay if it is demonstrated that there is an operative decision with ongoing or future effect capable of being stayed under s.606(1).[5] A stay order must have some practical effect in the sense that it stays an operative order or decision. Ordinarily, a stay order operates with respect to a decision or order that has some coercive effect because, for example, it requires a party to take some step or prohibits a party from engaging in conduct restrained by the order. In such a case, a stay would relieve the party of the obligation to comply with the order by taking the step it requires or free the party of the prohibition contained in the order.

• [7] In this matter, it is not clear what effect a stay would have. The issue of a certificate under s 368(3) of the Act has consequences. Section 370 sets out the circumstances in which a general protections dispute involving dismissal can be taken to court. The section provides:

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a) both of the following apply:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b) the general protections court application includes an application for an interim injunction.

• [8] Section 370(a)(i) prohibits the making of a general protections court application in relation to a dispute involving dismissal unless the Commission has issued a certificate under s 368(3)(a). A general protections court application must be made within 14 days of a certificate being issued unless a further period is allowed by the court.

• [9] The issuance of a certificate under s 368(3)(a) by the Commissioner appears to me to be an historical fact. It has occurred. Section 370 then operates in accordance with its terms. I do not consider that a stay order can change the fact that a certificate has been issued or alter the operation of s 370 of the Act. That is, even if I make a stay order, Mr Yang could commence a general protections court application and the time period in s 370(a)(ii) would continue to run. It appears to me that a stay would have no practical effect at all. In those circumstances, I do not think it is appropriate to grant a stay.

• [10] The present circumstance has the potential to cause inconvenience to the parties. It would be unfortunate if Mr Yang incurred the costs of making a general protections court application in circumstances in which an appeal, if successful, may result in the certificate being quashed and the trigger enlivening the making of the court application being removed. Section 370(a)(ii) allows a court to grant additional time for a general protections court application to be made. I imagine that the fact an appeal was ongoing with respect to the issue of the certificate would be relevant to whether further time should be allowed to make a general protections court application. However, that would be a matter for the court considering whether to allow further time if that eventuality comes to pass.

• [11] For those reasons, the application for a stay is dismissed.

D Boon, solicitor, of the Migrant Workers Centre appeared for the respondent.

[1] Fair Work Act 2009 (Cth), ss 368(1).

[2] Fair Work Act 2009 (Cth), ss 368(1) and 595(2).

[3] Fair Work Act 2009 (Cth), s 368(3)(a).

[4] Fair Work Act 2009 (Cth), ss 369-370.

[5] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11]; Krcho v University of New South Wales (t/as UNSW Sydney) [2020] FWC 4926 at [12]; Australian Manufacturing Workers' Union (AMWU) v Opal Packaging Australia Pty Ltd [2022] FWC 2448 at [14]; Woodside Energy Ltd v The Australian Workers Union [2022] FWC 2573 at [14]; AIS Pub Group Pty Ltd T/A Paddy Malones v Doe [2024] FWC 2082 at [13].

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