Australian Commercial Catering Pty Ltd v Marcelia Powell

[2014] FWC 7412

[2014] FWC 7412

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

Australian Commercial Catering Pty Ltd
v
Marcelia Powell; Maria Togia
(C2014/662)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 20 OCTOBER 2014

Appeal against the decision [[2014] FWC 2432] and order [PR549581] in matter number C2014/3631 and the decision [[2014] FWC 2431] in matter number C2014/3632 of Commissioner Roe at Melbourne on 10 April 2014.

[1] These Reasons for Decision follow advice provided to the parties on 16 October 2014 relative to an application for an order to stay the decisions 1 and order2 of Commissioner Roe. The Commissioner’s reasons for those decisions were published on 10 April 2014. Those decisions determined applications lodged by Australian Commercial Catering Pty Ltd (ACC) pursuant to s.120 of the Fair Work Act 2009 (the FW Act). In those applications, ACC sought to reduce the redundancy entitlements due to Ms Powell and Ms Togia, to zero.

[2] The circumstances of these appeals are exceptional to the extent that they were not apparently actioned by the Fair Work Commission (FWC) registry personnel for some six months after being lodged. The FWC records indicate that the appeals were brought to the attention of the President on 1 October 2014 and they were allocated to me on 5 October 2014 for the purposes of consideration of the stay orders requested.

[3] The appeals are made pursuant to s.604 of the FW Act. Under s.606, a Full Bench or Presidential Member of the FWC may, on terms and conditions considered appropriate, order that the operation of all or a part of a decision appealed against be stayed pending the determination of an appeal, or until further order of a Full Bench or Presidential Member.

[4] The approach generally applied to the consideration of stay applications involves consideration of:

1. whether there is an arguable case for the granting of permission to appeal,
2. whether there is an arguable case to support the appeal itself, and
3. whether the balance of convenience supports the granting of the stay.

[5] The Commissioner’s decision relative to Ms Powell was to the effect that he was not satisfied that the alternative employment offered to her was acceptable and consequently reduced the amount of redundancy pay that would otherwise be payable to her.

[6] With respect to Ms Togia, the Commissioner found that ACC did not obtain suitable alternative employment and consequently refused the application in its entirety.

[7] In its appeal, the ACC argues that the Commissioner’s decisions reflected the application of wrong principles and irrelevant considerations.

[8] In the stay proceedings on 16 October 2014 Mr Darmos, who is a lawyer, but is also the Managing Director of ACC, provided a personal assurance that, if the appeal was unsuccessful, the amounts owing to Ms Powell and Ms Togia would be paid forthwith. The ACC position was that the decision with respect to Ms Powell should be construed as the provision of “inconvenience money”, payable for relocation compensation and was inconsistent with established Full Bench authority. Further, that the decision with respect to Ms Togia was inconsistent with the position which the Commissioner adopted with respect to Ms Powell and similarly inconsistent with established authority. ACC asserted that, particularly given the passage of time since the decisions appealed against were issued, the balance of convenience strongly supported the granting of a stay.

[9] Ms Powell and Ms Togia did not strongly oppose the granting of a stay.

[10] I have concluded that the submissions put to me support a grant of a stay. Those submissions tenuously establish an arguable case for permission to appeal and for the appeal itself. The most compelling reason for the stay reflects the fact that no action has been taken to implement the Commissioner’s decisions since 10 April 2014, and the appeal is now listed for hearing in December 2014. This decision is predicated on the undertaking provided by Mr Darmos.

[11] An Order (PR556793) giving effect to this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

P Darmos appearing for the Appellant.

J Johnston appearing for the Respondents.

Hearing details:

2014.

Adelaide (by telephone):

October 16.

<Price code A, PR556792>

 1   [2014] FWC 2432 and [2014] FWC 2431

 2   PR549581

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