s.604 - Appeal of decisions

The Trustee for Leonfam Trust trading as Louttit Bay Bakery

Appeal against decision of Commissioner Platt at Adelaide on 13 May 2025 in matter number C2025/2858 - Application for a stay pending appeal - Stay sought with respect to a decision to issue a certificate under s 368 of the Fair Work Act 2009 (Cth) - Whether order for a stay would have any utility - Balance of convenience - Stay granted.

• [1] This is an application for a stay of a decision of Commissioner Platt of the Fair Work Commission (the Commission) to issue a certificate under s 368 of the Fair Work Act 2009 (Cth) (the Act). The stay is sought under s 606(1) of the Act which provides that, if it hears an appeal or conducts a review of a decision, the Commission may order the operation of the whole or part of the decision be stayed.

• [2] The certificate issued by the Commissioner arose from an application made by Cong Be Le under s 365 of the Act. The application alleges that Mr Le had been dismissed from his employment with the Louttit Bay Bakery and that the dismissal involved contraventions of ss 340, 343 and/or 351 of the Act. It is unnecessary, for present purposes, to set out the basis or nature of the allegations made in the application.

• [3] 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]

• [4] Mr Le's application under s 365 of the Act was made on 8 April 2025. Rule 65(1) of the Fair Work Commission Rules 2024 requires that "[a] respondent to a general protections application must lodge with the FWC a response by the respondent to the application within 7 days after the day on which the respondent was served with the application". It is not clear from the material available to me when Mr Le's application was served on Louttit Bay Bakery although this appears to have occurred on 23 April 2025.

• [5] By email dated 7 May 2025, solicitors for Louttit Bay Bakery informed the chambers of the Commissioner that they were "in the process of finalising the Form F8A and anticipate being able to file it in the following two days. The email provided certain materials which were said to "[t]o get the ball rolling, and to demonstrate our commitment to helping the employer response asap". The chambers of the Commissioner responded to the email on 12 May 2025 in the following terms:

The above matter has been allocated to Commissioner Platt.

The Fair Work Commission Rules require the Respondent (Leonfam Pty Ltd T/A Louttit Bay Bakery) to file and serve a Form F8A response. It appears the form is yet to be provided.

Accordingly, the Commissioner directs the Respondent to file and serve a Form F8A by no later than 4:00pm (SA) Tuesday, 13 May 2025.

If the Form F8A is not received by the abovementioned time, the Commissioner will issue a

Certificate which will enable the Application to file an application in a Federal Court within 14 days.

• [6] At 3.58pm on 13 May 2025, solicitors for the Louttit Bay Bakery sent an email to the chambers of the Commissioner in the following terms endeavouring to provide an explanation in relation to the delay in filing the Form F8A response:

We have just received some information from William Angliss Institute that we have been waiting for - see attached.

This information is directly relevant to the award classification issue / potential underpayments and causation.

I am finalising the Form F8A as we speak and will be able to file + serve this evening.

• The Respondent could not open some of the documents that FWC emailed on 23 April 2025
• The Respondent emailed the FWC about this on 28 April 2025
• I was only engaged on the afternoon of Tuesday 29 April (shortly after the FWC resent the materials)
• I have had to get some materials translated from Vietnamese into English
• I have already provided several materials to demonstrate our diligent progress

More generally, when I am acting for individual employees (which is about 60% of my practice), it is extremely common for employers (including large employers represented by large firms) to file response forms late (sometimes over a week late).

I have never seen the FWC chase those respondents with as much alacrity as I am being treated now, let alone threaten to issue a s 368 certificate when the parties have not had any opportunity to resolve the dispute via conciliation.

Practically speaking, I am a sole practitioner representing a small family business run by a proprietor who works semi-nocturnal hours because of his trade (baker). I have undertaken to respond as quickly as practicable. There is nothing to suggest that the Respondent (or my little firm) is being evasive or not taking the process seriously

• [7] The next step that appears to have been taken is that, on the afternoon of 13 May 2025, the Commission issued a certificate under s 368(3)(a) of the Act indicating that the Commission was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been, or were likely to be, unsuccessful.

• [8] On 26 May 2025, Louttit Bay Bakery filed a notice of appeal. In summary terms, the notice of appeal contends that it was not open to the Commissioner to be satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, that in deciding to issue the certificate the Commissioner failed to take into account relevant considerations and that the decision to issue the certificate was unreasonable. The notice of appeal seeks a stay of the decision to issue the certificate.

• [9] 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.

• [10] There is no dispute that the decision to issue a certificate under s 368(3)(a) is a "decision" for the purposes of s 598 and can be appealed, with permission of the Commission, under s 604(1) of the Act.[5]

• [11] A commonly cited formulation of the principles applicable to the grant of a stay is found in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 in which Ross VP (as his Honour then was) said:[6]

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] The authorities suggest that an applicant for a stay must positively demonstrate that the balance of convenience weighs in favour of a stay being granted. 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.[7]

• [13] The application of the usual principles in relation to a stay application is necessarily subject to it being demonstrated that there is an operative decision with ongoing or future effect capable of being stayed under s.606(1).[8] 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.

• [14] In this matter, it is not clear what effect a stay order would have. The issue of a certificate under s 368(3) of the Act has consequences. In particular, s 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.

• [15] As will be apparent, a person is prohibited from making a general protections court application in relation to a dispute involving dismissal unless the Commission has issued a certificate under s 368(3)(a) to the effect that it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. 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.

• [16] The submissions made on behalf of Louttit Bay Bakery suggest that a stay order would serve "the practical purpose of pausing the clock so as to allow the parties to continue negotiations ... and preserve Mr Le's right to escalate the dispute to court in due course if settlement negotiations fail". Mr Trindade, of Clayton Utz, appeared for Mr Le. He indicated that Mr Le "enthusiasticly consented" to a stay being granted and that, if a stay is not granted, he was instructed to commence a general protections court application before close of business today. Mr Trindade indicated that he believed a stay would be at least persuasive in relation an application for an extension of time under s 370(a)(ii) should that step prove to be necessary. He recognised, however, that nothing the Commission does would bind a court in relation to any extension of time application.

• [17] For my part, it is not clear to me that a stay order would have the effect of altering the operation of s 370. Arguably at least, if a certificate is issued under s 368(3)(a), s 370 operates in accordance with its terms and a stay order would not change the fact that a certificate has been issued. Only a decision to quash the certificate could have that effect. However, given the consent of the parties, I am prepared to make a stay order. Both parties are legally represented. It is, of course, a matter for the parties to obtain their own advice as to the effect of a stay order on their rights in relation to a general protections court application. Although I have some doubt as to the effect of a stay order, the balance of convenience favours an order being made.

• [18] It is undesirable that Mr Le be placed in the position of incurring the costs of making a general protections court application in circumstances in which there is an arguable case on appeal that would, if the appeal is successful, result in the certificate being quashed and the trigger enlivening the making of the court application being removed. It is doubly undesirable that Mr Le be put to that expense in circumstances in which the parties both wish to have the assistance of the Commission to endeavour to resolve the dispute. The practical position is that both parties wish to have the assistance of the Commission in conducting a conference to endeavour to resolve the general protections dispute and have indicated that they are optimistic that a resolution can be achieved.

• [19] For those reasons, an order granting a stay will be made and published concurrently with this decision.

T Pick, Principal, of Hector Douglas HR Legal for the Appellant

D Trinidade, solicitor, of Clayton Utz 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] See, for example, Kirkham v Monash University [2024] FWCFB 429.

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

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

[8] 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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