Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision of Commissioner Yilmaz at Melbourne on 28 March 2025 on transcript in matter numbers U2025/795 and U2025/797 - application for a stay order - stay order refused.

• [1] This decision concerns an application for a stay order by Pepperleaf.com.au Pty Ltd pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in relation to an appeal against a decision made on transcript by Commissioner Yilmaz on 28 March 2025. The Commissioner's decision was made in the context of dealing with the unfair dismissal applications made by each of the respondents to the appeal, Mr Simon Kahil and Mr John Cincotta, against the appellant.

• [2] In the decision, the Commissioner considered that the respondents' unfair dismissal applications were filed prematurely and, in the circumstances of the matter, was satisfied that this constituted an irregularity capable of waiver under s 586(b) of the Act. Accordingly, the Commissioner exercised her discretion to waive the irregularity in the form or manner in which each of the applications was made.

• [3] The appellant appeals the decision and seeks a stay over the whole of the decision. The respondents oppose the stay but did not otherwise seek to be heard at the stay hearing.

• [4] For the reasons that follow, the application for a stay order is refused.

• [5] Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision that is the subject of an appeal. The case of Edghill v Kellow-Falkiner Motors Pty Ltd,[1] provided the following formulation for determining stay applications:[2]

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

• [6] Accordingly, both 'elements' are necessary conditions to the grant of a stay.

• [7] At the stay hearing, the appellant submitted that it is seeking a stay of the 22 May 2025 merits hearing of the respondents' unfair dismissal applications before the Commissioner. I do not consider that s 606(1) of the Act empowers the Commission to issue a stay order in these terms. The setting of a hearing date by the issuance of a Notice of Listing is not an operative decision capable of being stayed under s 606(1).[3] Accordingly, I do not consider that a stay order to suspend the timetabling of the procedural steps until the determination of the appeal, as sought by the appellant, can be made.

• [8] To the extent that the appellant sought to withdraw this position subsequent to the stay hearing,[4] I have considered whether there is an arguable case, with some reasonable prospect of success, in respect of both the question of permission (leave) to appeal and the substantive merits of the appeal. This has been done, as is orthodox, without hearing the full argument or undertaking a full analysis of the case materials.

• [9] At the outset, I record that the appeal is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against such decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision.[5] Such appeals will almost always delay the resolution of proceedings, cause additional cost and vexation for the parties and occupy more of the time and resources of the court or tribunal concerned.

• [10] In any event, I am not presently persuaded that the requisite arguable case exists. The appellant's appeal is comprised of six appeal grounds.[6] At the heart of the appeal is the appellant's contention that it was not afforded an opportunity to be heard in respect of the Commissioner's decision to exercise her power under s 586(b) to waive the irregularities. In addition to its position that it was not afforded procedural fairness, the appellant contends that the Commissioner misapplied the Full Bench authority in Mihajlovic v Lifeline Macarthur,[7] it was denied the opportunity to make submissions regarding an "out of time" jurisdictional objection, and says that the Commissioner's exercise of discretion to waive the irregularity was based on a flawed process and lacked evidentiary support.

• [11] While the appellant may be able to develop its grounds at the permission to appeal hearing, I do not presently consider that an arguable case is demonstrated that it was denied an opportunity for a fair hearing. Before the Commissioner, the appellant raised its position that:

(a) the respondents' unfair dismissal applications were filed prematurely and ought to be discontinued; and

• (b) upon refiling, such applications should be subject to an out of time process.[8]

• [12] The appellant raises the same concern in its appeal. I do not consider it to be arguable that the Commissioner disregarded this submission, noting the reference made to it in the decision.[9] Nor am I persuaded that the Commissioner made a legal error of the kind described in House v The King[10] (that is, acted on a wrong principle, took into account irrelevant matters, mistook facts or is manifestly wrong) in the exercise of the discretion. The Full Bench decision in Mihajlovic v Lifeline Macarthur concerns the capacity to waive an irregularity associated with a premature application pursuant to s 586(b) of the Act. This decision was relevant to the circumstances before the Commissioner and appears to have been applied in an orthodox way. Further, the Commissioner had regard to s 577 of the Act, which requires the Commission to perform its functions in a manner that is, among other things, "fair and just" and "quick, informal and avoids unnecessary technicalities."[11]

• [13] The appellant contends that the Commissioner erred by not inviting it to present the case it would have advanced had it been objecting to applications that were refiled out of time. However, the applications before the Commissioner were not out of time and there was no statutory requirement for the Commissioner to address the matters in s 394(3) in waiving the identified irregularity. Further, the fact that the Commissioner made a decision that the appellant does not agree with does not, of itself, support the contention of bias. It follows that I am not presently persuaded that the appeal grounds give rise to sufficient prospects of success on appeal to justify the granting of a stay.

• [14] Given the matters addressed above, it is unnecessary for me to deal with the question of balance of convenience in detail, and I do not do so. However, I observe that the hearing of the appellant's application for permission to appeal will proceed before the Full Bench tomorrow, with a decision in the following day or shortly thereafter. The directions issued by the chambers of the Commissioner disclose that no further substantive decision making steps will be taken prior to the Full Bench determining the application for permission to appeal. Should permission to appeal be refused, this will be known with requisite time for the appellant to file and serve its material in response to merits of the respondents' unfair dismissal applications ahead of the 22 May 2025 hearing. Accordingly, the contention that the respondent will be materially prejudiced if a stay is not granted does not appear to arise. Should permission to appeal be granted, it will be open to the appellant to make an application to the Commissioner for an adjournment of the 22 May 2025 hearing at that time.

• [15] It follows that on the material before me, I would not conclude that the balance of convenience favours the grant of a stay, even if I were required to consider that matter.

• [16] The application for a stay order is dismissed for the reasons stated.

[1] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 785

[2] Ibid at [5], approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 786

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

[4] Email from the appellant to Chambers dated 5 May 2025; appellant's submissions dated 6 May 2025

[5] See e.g. Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited therein

[7] [2014] FWCFB 1070, 241 IR 142

[8] Transcript of proceedings dated 28 March 2025 (Transcript) at PN22-PN24

[10] [1936] HCA 40; 55 CLR 499

[11] Fair Work Act 2009 (Cth), s 577(1)(a) and (b)

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