Australian Ceramics Engineering Pty Ltd v Ryan Archer - [2022] FWC 3337

[2022] FWC 3337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.603 - Application to vary or revoke a FWC decision

Australian Ceramics Engineering Pty Ltd
v

Ryan Archer

(C2022/8177)

DEPUTY PRESIDENT BEAUMONT

PERTH, 23 DECEMBER 2022

Application to revoke decision [2022] FWC 3029 of Commissioner Williams at Perth on 18 November 2022 – stay application – s.589 – stay order granted.

On 9 December 2022, Australian Ceramics Engineering Pty Ltd (the Applicant) filed a Form F1 – Application, making an application pursuant to s 603(2)(b)(i) of the Fair Work Act 2009 (Cth) (the Act) to revoke a decision of this Commission in Archer v Australian Ceramics Engineering Pty Ltd (the Decision).[1] In the Decision, Commissioner Williams concluded that Mr Archer, the Respondent in this application, had been unfairly dismissed within the meaning of s 386 of the Act and consequently ordered the Applicant to pay compensation in the amount of $34,200 before tax (the Order).[2]

In addition to seeking the revocation of the Decision (the Revocation Application), the Applicant has sought that the Order for compensation be stayed pending a determination of its Revocation Application. It is this aspect of the application that this decision addresses.

Before turning to legal principles, it is first necessary to address the context of the application. The Applicant submitted that it initially corresponded with the Commission in relation to Mr Archer's unfair dismissal application and a jurisdictional objection to the application between 5 and 20 May 2022. After this time, however, it claims it was not aware of, and accordingly did not respond to, any further correspondence, and did not file any materials in respect of its jurisdictional objection or at all with respect to the originating unfair dismissal application. It followed, said the Applicant, that it was unaware of, and accordingly did not appear at, the hearing on 28 October 2022. Essentially, it appears that part of the Applicant’s argument in support of the Revocation Application is that it had been led astray by a rogue HR practitioner.

Returning to the relevant legal principles, it is apparent from the terms of s 606(1) of the Act that the power to stay a decision under this section is not at large and is not a power that applies generally to all decisions. Under s 606(1), a stay order may only be made in relation to a decision subject to appeal (under s 604) or a review (under s 605).[3]

However, this does not in turn mean that the Commission is without authority to order a stay in circumstances where the application is not one of an appeal or review but is an application for a decision to be revoked under s 603 of the Act. As was observed in Esso Australia Pty Ltd (Esso), it is uncontroversial that s 589(1) of the Act confers on the Commission a power to make decisions ‘as to how, when and where a matter is to be dealt…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3337
Decision Date: 23 DECEMBER 2022

CaseChat Overview and Summary

In the Fair Work Commission, Australian Ceramics Engineering Pty Ltd (Applicant) applied to revoke a decision of the Commission, which found that Ryan Archer (Respondent) had been unfairly dismissed. The Applicant also sought to stay the payment of compensation ordered by the Commission pending the determination of the application to revoke. The Deputy President, Beaumont, considered the application and concluded that the interests of justice favoured granting the stay order.

The legal issues before the court were whether the Commission had the authority to grant a stay order in these circumstances, and if so, whether the principles for granting an interim order were satisfied. The Deputy President found that the Commission had the authority to grant a stay order under section 589(1) of the Fair Work Act 2009, and that the principles for granting an interim order were met. There was a serious question to be tried, the Applicant would likely suffer injury if the stay order was not granted, and the balance of convenience favoured granting the stay order.

The Deputy President granted the stay order, and the Decision and Order of compensation made by the Commission were stayed pending the determination of the Revocation Application. An order to that effect was issued concurrently with this decision.

Orders