[1] This is an application by Suncorp Staff Pty Ltd (the Company) for a stay of the decision of Commissioner Spencer made on 22 December 2011 in a matter relating to Mrs Coralynn Brewer. The matter before the Commissioner concerned an allegation of workplace harassment which was referred to Fair Work Australia (FWA) pursuant to the dispute settling procedure in the Suncorp Group Enterprise Agreement 2011 (the Agreement).

[2] When the matter came before the Commissioner the Company raised a jurisdictional objection to FWA dealing with the dispute. The Commissioner, in a lengthy decision, considered the relevant authorities and the proper application of the Agreement. The Commissioner decided that the matter was within the jurisdiction of FWA and indicated that the matter would be listed for conciliation. The matter is listed for a conference before the Commissioner on 27 January 2012.

[3] The Company has sought a stay of the decision, the practical effect of which would be to prevent the listed conference from proceeding.

[4] In the present proceedings, the parties agreed that the conventional approach should be adopted in the consideration of whether a stay order should be made; that is, to consider whether there is a sufficiently arguable case that permission to appeal would be granted and the appeal would succeed, and whether the balance of convenience favours the granting of a stay. The parties addressed these issues in their submissions and these have been considered in reaching my conclusion on the stay application.

[5] I am not satisfied that there is an arguable case with reasonable prospects of success on the question of permission to appeal and the substantive merits of the appeal. The Commissioner gave careful consideration to the proper construction of the relevant clauses in the Agreement and referred in her decision to various authorities relating to similar clauses in other agreements. Although the issue might be more fully argued in the appeal proceedings, I am not persuaded on what has been put in the proceedings this morning that there has been any error in the approach adopted by the Commissioner to the consideration of the jurisdictional objection, or in the conclusion reached by her.

[6] In relation to the balance of convenience, I consider that this weighs against the granting of the stay. The matter has been listed by the Commissioner for a conciliation conference. The conference will bring the parties together, with the assistance of FWA, to consider the issues arising in the dispute between them and to explore whether a resolution to the dispute might be achieved through the conciliation process. Such an exercise might be in the best interests of all involved as it may lead to a resolution of the dispute at an early time and without the need for further proceedings which might involve delays and costs to both parties.

[7] As the matter is listed for conciliation and not arbitration, there will be no binding determination of the issues in dispute arising from the conference, save if there is an agreement reached between the parties. In this regard I also note the undertaking given by the Finance Sector Union (the Union) representative in the present proceedings, to the effect that no orders will be sought in the proceedings listed before the Commissioner, and that the purpose of the proceedings, from the Union's viewpoint and that of the applicant, is to facilitate discussion between the parties with a view to finding a resolution to the issues that have arisen.

[8] In all the circumstances I have decided not to grant the stay sought by the Company.

[9] As the parties are aware, the appeal is listed for hearing before a Full Bench on Tuesday, 21 February and directions have been issued regarding the filing of outlines of submissions. Finally, I would encourage the parties to seek to find a resolution of the issues in dispute between them through all appropriate means.

Mr J Fernon of Senior Counsel with Mr P Young for Suncorp Staff Pty Ltd.

Mr T O'Brien of the Finance Sector Union for Mrs Coralynn Brewer.

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