The only decision issued by the Deputy President to date has been upheld on appeal. The appeal decision dismissed with many of the contentions made in the recusal application.

The materials which Woodside have been directed to file are the materials which will be required to be filed regardless of which Member ultimately determines the Application.

In these circumstances the Deputy President does not propose to vacate the Directions and stand the matter over."

• [5] On 21 September 2022, after receipt of the above email, Woodside filed an amended notice of appeal in which it seeks:

(1) to add a second ground of appeal in relation to the vacation decision as follows:

2. As to the Vacation Decision, the Deputy President erred in failing to vacate the directions issued on 12 July 2022 and extended on 20 September 2022, and in failing to stand the proceedings over pending the hearing and determination of this appeal.

(a) The Vacation Decision, either separately or taken together with the unilateral making of the directions issued 12 July 2022 and amended on 20 September 2022, gives rise to a reasonable apprehension of bias.

(b) The Deputy President erroneously found that the materials which Woodside have been directed to file are the materials which will be required to be filed regardless of which Member ultimately determines the Application.

• [6] This decision concerns whether leave should be granted to allow the amendment to its notice of appeal sought by Woodside and whether a stay of the vacation decision should be granted. I conducted a hearing in relation to these matters earlier today.

Amendment to the notice of appeal and expedition of the hearing of the appeal

• [7] The AWU opposed the application for amendment. It submitted that what was sought was not in truth an amendment to the existing appeal against the recusal decision but rather the lodgment of an additional appeal against the vacation decision.

• [8] I accept that the course proposed to be taken by Woodside is procedurally unorthodox. However, I consider that allowing the amendment, as distinct from requiring Woodside to file a separate notice of appeal in respect of the vacation decision, would not cause any prejudice to the AWU or give rise to any other issue of substance. The AWU properly conceded this to be the case. Accordingly, I allow the amendment under s 586(a) of the FW Act.

• [9] I raised with the parties at the hearing whether, if the amendment was allowed, it would be appropriate to expedite the hearing of the appeal. This course was embraced by Woodside and not opposed by the AWU. I consider that an expedited hearing, which would allow the appeal to be heard and determined by around the time that the timetable provided for in the extended directions is completed, would be appropriate in all the circumstances. In particular, it would allow the apprehended bias issue to determined prior to the Deputy President engaging in any further substantive decision-making step in relation to the MSD application. Accordingly, the hearing listed for 22 November 2022 is vacated, and the hearing will instead be listed for 21 October 2022.

• [10] Notwithstanding my indication of a preparedness to expedite the hearing of the appeal, Woodside pressed its stay application. The AWU opposed the grant of a stay.

• [11] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill.[2] Paragraph [5] of that decision states:

"[5] 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] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the appeal's merits. This assessment is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant's full argument and usually will not have had the opportunity to properly peruse the case materials.[3]

• [13] The application of the above principles is subject to the applicant for a stay demonstrating at the outset that there is an operative decision with ongoing effect that is capable of being stayed. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal.[4]

• [14] It is necessary to say at the outset that I do not consider that the grant of the stay sought by Woodside would have any meaningful effect. Woodside submitted that it is possible for an order dismissing or refusing an application to be the subject of a stay; in that circumstance, the effect of the stay would be to restore any previously applicable orders or where, as in this case, there are no such orders, then to restore the status quo ante by bringing about a situation in which there are no operative orders. I reject this submission: the "status quo ante" existing prior to the making of the vacation decision was that the extended directions had been made and were operative. It seems to me that what Woodside seeks in substance is a stay of the entire proceedings before the Deputy President pending the hearing and determination of its appeal. I doubt that s 606(1) of the FW Act empowers this, for the reasons stated in CFMEU v Collinsville Coal Operations Pty Limited.[5]

• [15] In any event, I do not consider that a stay of the vacation decision should be granted, nor would I grant a stay of the proceedings before the Deputy President if I had the power to do so. I am prepared to assume that ground 2 of the amended notice of appeal, at least as particularised in paragraph (a), is reasonably arguable (including as to permission to appeal). However, I consider that the balance of convenience weighs decisively against the grant of a stay.

• [16] The arrangement made for an expedited hearing of the appeal will, as earlier stated, ensure that the Deputy President does not engage in any further substantive decision-making step prior to a Full Bench having the opportunity to consider and determine whether the Deputy President is disqualified from further dealing with the MSD application on the ground of apprehended bias. That being the case, the issue of the balance of convenience turns only on whether Woodside should remain subject to the requirement to comply with the extended directions pending the determination of its appeal. In my view, there are strong reasons why it should remain under such a requirement. The AWU filed its MSD application on 3 June 2022, and the Commission would in the ordinary course endeavour to hear and determine such an application as expeditiously as possible consistent with:

• its obligations under s 577 of the FW Act, including but not limited to paragraph 577(b);

• that part of the object in s 3(f) of the FW Act concerning "achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action"; and

• the object of Pt 2-4, Enterprise Agreements of the FW Act in s 171(a) "to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits".

• [17] Compliance with the extended directions pending the hearing of the appeal will have the benefit of ensuring that the MSD application is ready for hearing, or at least substantially ready for hearing, once the appeal is determined. This will be so whether the appeal fails, in which case the Deputy President will determine the MSD application, or the appeal succeeds, in which case the application will be determined by another member of the Commission. In this way the appeal will not operate to delay further the final determination of the MSD application, regardless of the outcome of the appeal.

• [18] The only issues of prejudice identified by Woodside as arising in the event it remained subject to the extended directions were that:

(1) the submissions it has been directed to file would not deal with all the issues which it considered would arise; and

(2) the directions require it to "go first" (i.e. ahead of the AWU) in filing its evidence and submissions.

• [19] The first matter is based upon a wrong premise. The relevant direction does not limit the matters which Woodside may raise and address in its submissions; rather it makes clear that the submissions must deal with, but need not be confined to, the specified matters. The second matter, to the extent that it has any substance at all, does not give rise to any irreversible prejudice that may not be cured by subsequent procedural steps to ensure a fair hearing.

• [20] Because I consider that the balance of convenience weighs against the grant of a stay, Woodside's application for a stay order is refused.

(1) The amendment sought in Woodside's amended notice of appeal filed on 21 September 2022 is allowed.

(2) The application for a stay order in the amended notice of appeal is refused.

• [22] An amended notice of listing and directions for the hearing of this appeal have separately been sent to the parties.

I Neil SC and R Kumar of counsel for the appellant.

[1] [2022] FWC 2236

[2] [2000] AIRC 785, Print S2639

[3] Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [9]

[4] Construction, Forestry, Mining, and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11]; Bahonko v Sterjov [2007] FCA 1717 at [50]

[5] [2014] FWC 4276 at [11]

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