Fair Work Act 2009

s.606 - Staying decisions that are appealed or reviewed

Spinifex Australia Pty Ltd T/A Spinifex Recruiting

Appeal against decisions [2018] FWC 1363 and [2018] FWC 3686 of Senior Deputy President Hamberger at Sydney on 13 March 2018 and 21 June 2018 in matter U2017/12212.

[1] On 13 March 2018, Senior Deputy President Hamberger issued a decision[1] on whether Ms Patrice Tait (Respondent) had completed the minimum employment period in respect of the jurisdictional requirement set out under s.382 of the Fair Work Act 2009 (Cth) (the Act). In that decision, the Senior Deputy President determined that the Respondent had completed at least the minimum employment period with Spinifex Australia Pty Ltd T/A Spinifex Recruiting (Appellant).

[2] On 21 June 2018, Senior Deputy President Hamberger issued a subsequent decision[2] regarding the substantive merits of the Respondent's unfair dismissal application. In that decision, the Senior Deputy President resolved that the Respondent was unfairly dismissed by the Appellant, and an order of compensation amounting to $15,000 was made payable within 7 days of that decision.[3]

[3] On 28 June 2018, the Appellant lodged a Notice of Appeal appealing both the decisions referred to above. In the Notice of Appeal, the Appellant also applied for a stay of the "whole of the Decision".

[4] On 29 June 2018, I listed the matter for a same day stay hearing, however due to the unavailability of the Respondent, the Respondent agreed for the stay hearing to be stood over to 2 July 2018.

[5] At the stay hearing on 2 July 2018, Mr P. Boncardo, of counsel, sought permission to appear for the Appellant and Ms Tait, Respondent, appeared on her own behalf. Given the complexity of the matter and having regard to s.596(2)(a) of the Act, permission to appear was granted to the Appellant for the purposes of the stay hearing only.

[6] In the hearing, I noted to the Appellant that the appeal against Senior Deputy President Hamberger's initial 13 March 2018 decision on jurisdiction is out of time and that it needed to make a formal application and to file written materials in support of an extension of time. This will then need to be considered by the Full Bench in the substantive hearing.

[7] At the conclusion of the hearing, I made an ex tempore decision informing the parties that I would grant a stay of Senior Deputy President's decision and order dated 21 June 2018.[4] My reasons for reaching this conclusion are outlined below.

[8] In Kellow-Falkiner Motors Pty Ltd v Edghill,[5] the Full Bench approved the following statement of principle:

"[5] 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] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made."

[9] In considering the grounds of appeal outlined by the Appellant in its Notice of Appeal, I am satisfied that at least in relation to ground 5, there are important questions concerning the application of s.392 of the Act. As such, I am satisfied that the Appellant has an arguable case, with some reasonable prospect of success.

[10] Immediately preceding the stay hearing, the Appellant filed written submissions with the Commission which proposed that the $15,000 in compensation be deposited into its solicitor's trust account pending the determination of the appeal.

[11] In the hearing, the Respondent was given an opportunity to consider the matters proposed by the Appellant above. The Respondent did not consent to this arrangement, as she submitted that she was entitled to payment as per the reasons for decision set out by the Senior Deputy President.

[12] Given that the appeal proceeding is listed for hearing on 7 August 2018, and given that the Appellant has proposed that its solicitors hold the $15,000 on trust for the Respondent pending the determination of the appeal, I am satisfied that the balance of convenience favours the granting of a stay.

[13] I am satisfied 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. Further, I am satisfied that the balance of convenience weighs in favour of granting the stay application.

[14] Accordingly, the stay application is granted.

[15] An Order (PR608669) will be issued to this effect in accordance with this Decision.

Mr P. Boncardo, counsel, and Mr P. Macken, solicitor for the Appellant.

[1] [2018] FWC 1363.

[2] [2018] FWC 3686.

[4] [2018] FWC 3686 and PR608347 respectively.

[5] [2000] AIRC 1207.

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