s.604 - Appeal of decisions

Philip Colasante Pharmacies Pty Ltd & Pharmec Pty Ltd and Others

Shop, Distributive and Allied Employees Association

Appeal against decision [2025] FWC 2352 of Deputy President Hampton at Adelaide on 2 December 2025 in matter number B2025/635 - Application for stay pending appeal - Single interest employer authorisation made - Whether arguable case of appealable error - Whether balance of convenience favours stay being granted - Stay refused.

• [1] On 2 December 2025, a Deputy President of the Commission made a single interest employer authorisation with respect to six employers who each carry on an enterprise as a franchisee operating a Chemist Warehouse pharmacy store in South Australia.[1] The authorisation was made on application of the Shop, Distributive and Allied Employees Association (the SDA) and relates to a proposed enterprise agreement to cover each of the six named employers and all of their employees who perform work in South Australia at a pharmacy within any classification between A.1 and A.8 of the classifications definitions in Schedule A to the Pharmacy Industry Award 2020 other than a "Pharmacist in charge" and "Pharmacist manager".

• [2] On 19 December 2025, the employers filed a notice of appeal under s 604(1) of the Fair Work Act 2009 (Cth) (the Act) in which they seek permission to appeal and to appeal from the decision. The notice of appeal seeks a stay of the decision and authorisation. The application for a stay was listed for hearing before me today. Patrick Wheelahan KC and James McLean were granted permission to appear for the appellants at the hearing of the stay application. Paris Dean was granted permission to appear for the SDA. For the reasons which follow, the application for a stay is dismissed.

• [3] The SDA applied for the authorisation under s 248(1)(b) of the Act in respect of bargaining for a proposed multi-enterprise agreement to cover a defined group of employees employed by the six named employers. There was no dispute that the SDA was entitled to make the application. Section 249(1) provides that the Commission must make a single interest employer authorisation if an application for an authorisation has been made and the Commission is satisfied as to the matters set out in s 249(1)(b). The requirements are numerous and expressed in a convoluted fashion. It is sufficient, for present purposes, to observe that if the application is made by a bargaining representative of an employee and each employer has not consented to the application, s 249(1)(b)(iv) requires that the Commission be satisfied that the employer is covered by subsection (1B). Section 249(1B)(d) relevantly provides:

(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and

• [4] The only requirement subject of dispute at first instance was whether the Commission should have been satisfied that a majority of the employees employed by the employer and who will be covered by the agreement "want to bargain for the agreement" for the purposes of s 249(1B)(d). The Deputy President was satisfied that the requirements which trigger the obligation to make an authorisation were met, including the condition in s 249(1B)(d).

• [5] With respect to s 249(1B)(d), the Deputy President provided a preliminary report with respect to the petition relied upon by the SDA to demonstrate majority support. The preliminary report indicated that a majority of the employees of each of the employers had signed the petition in favour of bargaining. The appellants submitted that the "facial" majorities disclosed by the SDA's petitions were insufficient to demonstrate majority support and that there was no proposed "agreement" of the requisite kind in respect of which the majority of employees could be said to want to bargain. In summary, the appellants contended that the Commission could not be satisfied that the employees appreciated the nature or consequences of pursuing a multi-employer agreement or that the employees wanted to bargain for "the agreement" subject of the application given uncertainty about, and changes which had been made to, the proposed coverage of the multi-employer agreement pursued by the SDA.

• [6] The Deputy President concluded (at [65]) that when s 249(1B)(d) refers to "the agreement" it must mean the agreement proposed by the applicant as there is, at the time, no actual agreement and no negotiations have even commenced. The Deputy President determined that it is not necessary for the "precise details" of the intended scope of a proposed agreement to be known to employees. In that respect, the Deputy President said (at [67]):

[67] Despite this authority dealing with a different expression - proposed enterprise agreement and the different context, the above approach is at least instructive on the notion of what "the agreement" may mean when used in s.249(1B)(d) and the present context. There is of course no agreement and the (proposed) agreement in the present context must be as proposed by the SDA. It is the applicant and the initiator of the petitions and there is no actual agreement to bargain. In that regard I observe that the proposed agreement involved here is much earlier in the process and more conceptual than that which is operative in cases such as a protected action ballot order application where bargaining for a proposed agreement must already be underway with a more detailed notion of who might be covered and what terms it might provide. Further, although I would certainly accept that there must be some reasonable notion of who might be covered by the proposed agreement and that it is intended to be an enterprise agreement under the Act, it would not be consistent with the statutory scheme to assume a requirement for present purposes that the employees must be aware of all of the precise details of the intended scope or its terms for their apparent wish to bargain for that agreement to be probative.

• [7] After setting out the course of events and the terms of the petitions relied upon by the SDA, the Deputy President concluded that there was a proposed agreement at the time the employees' endorsement was sought. The Deputy President said (at [76]):

[76] Notwithstanding the above concerns, I consider that as least as far as the scope of the proposed agreement is concerned, the material before the Commission is consistent with the notion that there was a proposed agreement about which a majority of employees at each of the respondent employers were invited to support bargaining for. Further, I consider that there was sufficient indication given to the employees that what was proposed was an enterprise agreement that the SDA intended to negotiate with the relevant employers. That is, given the statutory scheme and the information provided, I consider that there was a proposed agreement at the relevant time and that the employees' endorsement on the petition was in relation to that agreement.

• [8] The Deputy President was satisfied that there was sufficient probative material before the Commission to establish that the employees wanted to bargain for the proposed agreement. Most relevantly, the Deputy President said (at [82]):

[82] As stated earlier, the employees were informed that what was being sought was a multiemployer single interest employer agreement. A broad but reasonable explanation of the bargaining process and context was also provided in the explainer. I do accept that the employees were not made aware of some of the potentially more detailed consequences of the election the employees were being requested to make. This includes that in the event of an SIEA agreement subsequently being proposed for approval by the employees, it would require the agreement of all relevant employers and the approval of all (registered) employee organisations involved (or a voting request order made by the Commission), and then only be approved in, and cover, employees at those employers where a majority vote endorsed it. Further, there are limitations on agreement-making options when a SIEA is made. I observe that there are different but nevertheless real implications for any form of agreement-making options under the FW Act and the assessment of the desire or otherwise of the employees to bargain must in that context.

• [9] The Deputy President indicated that he was, on balance, persuaded that the majority support requirement had been met in the case of each of the employers and that he was obliged to issue an authorisation under s 249(1) of the Act.

• [10] The principles to be applied in determining whether to grant a stay pending appeal are not in dispute. The power of the Commission to make an order staying a decision 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.

• [11] A commonly cited formulation of the principles applicable to the grant of a stay is found in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 in which Ross VP (as his Honour then was) said:[2]

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects 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.

• [12] A similar approach has been adopted by the courts in relation to an application to a stay pending appeal.[3] The courts have emphasised that an applicant for a stay must positively demonstrate that the balance of convenience weighs in favour of a stay being granted and that there is no prima facie position in favour of the granting of a stay and the grant of a stay is not to be regarded as the usual course.[4] However, special circumstances need not be shown.[5]

• [13] It is appropriate to first consider whether there is an arguable case with reasonable prospects of success in relation to both the question of permission to appeal and the appeal sufficient to justify a stay being granted. It is appropriate to emphasise that the consideration of the grounds of appeal which is undertaken for the purposes of determining a stay application is necessarily preliminary and superficial and should not be understood to express any firm, much less final, view in relation to the merits of the appeal.

• [14] The notice of appeal in this matter contains five grounds. To establish an arguable case on appeal, the appellants relied primarily on grounds three and five which are as follows:

1. The Deputy President mistook the facts in finding, at Decision [76], that "there was a proposed agreement at the relevant time and... the employees' endorsement on the petition was in relation to that agreement" (emphasis added).

1. The Deputy President misconstrued the requirements of s 249(1B)(d) of the FW Act (and specifically, the meaning of the phrase "the agreement"), with the consequence that the Deputy President's jurisdiction miscarried, when the Deputy President concluded:
   1. at Decision [67], that the meaning attaching to the term "the proposed agreement" in different statutory contexts was instructive as to the meaning of "the agreement" in s 249(1B)(d) of the FW Act;
   2. at Decision [76], that "there was a proposed agreement about which a majority of employees at each of the respondent employers were invited to support bargaining for";
   3. at Decision [76], that there was the requisite agreement in light of the finding that at Decision [75] that "the final scope of the employees to be those working at the Pharmacies subject to the SDA's discretion to determine precisely which job roles were to be included;" and
   4. at Decision [76] and [86], that a majority of the employees of each Employer want to bargain for "the agreement" in circumstances where it was not clear who the "the agreement" would cover.

• [15] Mr Wheelahan confirmed that the two grounds are related. Although ground three contains an allegation that the Deputy President "mistook the facts", the core ground is that the Deputy President misconstrued s 249(1B)(d) by regarding the phrase "the agreement" as referring to a proposed agreement and by being satisfied as to the majority support requirement, notwithstanding that the final scope or coverage of the proposed agreement was not determined at the time the support of the employees for bargaining was tested. Mr Wheelahan submits that these are new provisions which have not yet been authoritatively considered and that permission to appeal will be granted. He submits that the appellants have at least an arguable case on appeal.

• [16] It is necessary to consider only grounds three and five for the purposes of determining whether there is an arguable case on appeal. I accept that the appellants have an arguable case with some reasonable prospects of success in relation to the question of permission to appeal. The present provisions permitting the Commission to make a single interest employer authorisation are relatively new and were introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). It is not correct to say that there has been no consideration of s 249(1B)(d). The section has been considered by the Full Bench and the Full Court of the Federal Court.[6] However, the contentions now sought to be advanced by the appellants in relation to the phrase "the agreement" in s 249(1B)(d) do not appear to have been previously considered by the Full Bench. The appellants, in my view, have reasonable prospects of being granted permission to appeal to permit the Full Bench to consider that matter.

• [17] The SDA contends that, although there may be reasonable prospects of the appellants being granted permission to appeal, the appeal itself is weak. The SDA contends that the contention that there is no "agreement" that employees could want to bargain for unless the coverage of the agreement has been finally determined cannot be reconciled with the statutory scheme. It submits that the final scope of an agreement will frequently not be known at the time employee support must be obtained, the scope of an authorisation will only be determined by the Commission, and the Act makes provision for employees to be "roped in" at a later date. The SDA submits that, in this context, it is extraordinarily unlikely that the construction of the words "the agreement" advanced by the appellants will be accepted.

• [18] The matters raised by the SDA will, no doubt, require consideration in the determination of the appeal. The Deputy President referred to other features of the Act which he believed are difficult to reconcile with the construction advanced by the appellants. However, it is not possible or appropriate to attempt to reach any firm view in relation to the question of construction raised by the appellants for the purposes of determining the stay application. I accept that the appellants have an arguable case with some reasonable prospects of success in relation to grounds three and five in the notice of appeal. Section 249 is a new provision and, with respect, its drafting gives rise to a number of uncertainties. The intended meaning of the phrase "the agreement" in s 249(1B)(d) is not entirely clear from the text and, based on a preliminary assessment, the argument sought to be advanced by the appellants has at least some prospects of success. The strength of the argument will need to be considered by the Full Bench after more fulsome submissions are received.

• [19] It is necessary to then turn to the question of the balance of convenience. The appellants contend that the balance of convenience strongly favours a stay. They submit that the authorisation will oblige the appellants to participate in a bargaining process that will be inescapably complex and necessitate significant time and logistical investment by the appellants in circumstances in which there is a tangible prospect that the authorisation may be set aside. The appellants also submit that the potential prejudice is amplified when regard is had to the mechanisms available to the SDA in reliance on the authorisation, including initiating proceedings in the Commission or organising protected industrial action.

• [20] The SDA, on the other hand, submits that it will suffer significant prejudice if a stay is granted. In that respect, it relied on a witness statement of its National Industrial Officer, Ali Amin, filed 5 January 2026 which described the impact Mr Amin says will be caused to the SDA and to bargaining in the event that a stay is granted. In summary, the SDA submits that prejudice will be caused to it by a stay because its bargaining campaign will be derailed, the conclusion of any agreement will be delayed by many months, the authorisation is set to expire in 12 months and the protections arising from the application of the good faith bargaining requirements will not apply whilst the stay is in operation.

• [21] Having considered all of the considerations raised, I am not satisfied that the balance of convenience favours granting a stay. In my view, the prejudice which is likely to be caused to the SDA and its members if a stay is granted significantly outweighs the prejudice which will be caused to appellants if the application for a stay is refused. I accept the evidence in the witness statement of Mr Amin that a delay of some months in the commencement of bargaining has the potential to interrupt the momentum of bargaining and the organising efforts of the SDA. That potential is increased by the transient nature of the workforce in the retail sector. I also accept that prejudice might be caused to employees who will be covered by an agreement, if ultimately made, by reason of the conclusion of the bargaining process being delayed.

• [22] In my view, it is significant that s 249(4) provides that a single interest employer authorisation ceases to be in operation 12 months after the day on which it is made. The authorisation in this matter was made on 2 December 2025 and will cease to operate on 2 December 2026. The Commission can vary an authorisation to extend the period it is in operation under s 252, but only if satisfied that there are reasonable prospects that the agreement will be made if the authorisation is extended and it is otherwise appropriate in all the circumstances to extend the period. There is no guarantee the authorisation could be extended beyond 2 December 2026. Accordingly, if a stay is granted, a substantial proportion of the period of operation of the authorisation is likely to be lost before the appeal can be determined. The SDA would be deprived of a substantial part of the outcome it has achieved as a result of the decision of the Deputy President.

• [23] The appellants submit that this does not constitute a prejudice to the SDA given that Mr Amin estimates that bargaining in this type of case will take six to twelve months. They submit that no prejudice will be caused by a stay being granted because no agreement is likely to be reached before the hearing of the appeal in any event. I do not accept the submission. If it is correct that bargaining is likely to take six to twelve months, the whole period of the authorisation is valuable to the SDA. If four or five months of the period are lost by reason of a stay being granted, it is unlikely the bargaining will be able to be concluded before the authorisation ceases to operate. The prospects of the SDA achieving a multi-employer agreement will be at least harmed, and perhaps extinguished.

• [24] I also accept that some prejudice may be caused to the SDA and its members by the fact that the good faith bargaining requirements will not apply to the appellants if a stay is granted. Although there is nothing before me to suggest that the appellants are likely to engage in conduct that contravenes the good faith bargaining requirements, I accept that it is preferrable that the parties have access to the mechanisms available within the Commission to resolve bargaining disputes or seek bargaining orders. If there are concerns that any bargaining representative is conducting itself in a manner that is unfair or capricious, for example, there is some prejudice in the parties not having access to a ready mechanism of dispute resolution through the Commission.

• [25] The prejudice which might be caused to the appellants is of a different order. I accept that some administrative and logistical costs are likely to be incurred by the appellants in participating in bargaining as a result of the need to coordinate their approach to bargaining, arrange and attend meetings, provide relevant information to the SDA and facilitate access to employees. It is possible that some or all of that effort may ultimately be for no purpose if the appeal is successful and the authorisation quashed. I have taken that prejudice into account. However, the potential administrative costs or inconvenience is not sufficient to persuade me that the balance of convenience favours a stay being granted. In this respect, I have considered the evidence of Mr Amin as to the limited nature of the initial steps the SDA proposes to take with respect to the bargaining.

• [26] Furthermore, a requirement to participate in bargaining should not necessarily be regarded as a prejudice. The appellants oppose bargaining for a multi-enterprise agreement. However, a member of the Commission has been satisfied that a single interest employer authorisation must be made. Although that decision is being challenged, I would like to think that, if approached in good faith, it is not impossible that progress could be made in bargaining pending the determination of the appeal. The appellants may find that the demands of the SDA are more reasonable than they expect and some common ground can be reached. This possibility reinforces my view that the balance of convenience does not favour a stay being granted.

• [27] Finally, the SDA has given an undertaking to the Commission that it will not make any application seeking a protected action ballot order until the resolution of the appeal by the Full Bench. This undertaking was given in the witness statement of Mr Amin and, on instructions, by Mr Dean during the hearing of the stay application. That undertaking removes one potential prejudice which might be caused to the appellants by refusing a stay. I do not regard the possibility of proceedings before the Commission by way of a bargaining dispute or application for bargaining orders to be a significant prejudice to the appellants. For the reasons I have explained, the availability of those mechanisms has the potential to be a benefit to all parties.

• [28] For these reasons, the application for a stay is dismissed.

P Wheelahan KC and J McLean, of counsel, instructed by Herbert Smith Freehills Kramer for the appellants.

P Dean, of counsel, instructed by A Amin for the SDA.

[1] Shop, Distributive and Allied Employees Association v Philip Colasante Pharmacies Pty Ltd & Pharmec Pty Ltd and Others [2025] FWC 2352.

[2] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 at [5].

[3] See, for example, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; Powerflex Services Pty Ltd v Data Access Corporation [1996] FCA 460; (1996) 67 FCR 65 at 66.

[4] Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [11] citing Edwards v Telstra Corporation Limited [1998] AIRC 679, Print Q2467.

[5] Phillip Morris (Aust) Ltd v Nixon [1999] FCA 1281 at [17].

[6] Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd [2024] FWCFB 253; (2024) 334 IR 245 at [237]- [240]; Ulan Coal Mines Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127; (2025) 311 FCR 352 at [214]- [230].

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