Barwon Health v Dr Mark Colson

[2013] FWC 1435

[2013] FWC 1435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Barwon Health
v
Dr Mark Colson
(C2013/3409)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 8 MARCH 2013

Appeal against decision [[2013]FWC766] of Commissioner Roe at Melbourne on 11 February 2013 in matter number U2012/10440 .

[1] This decision arises from an application made by Barwon Health for a stay order pursuant to s.606 of the Fair Work Act 2009 (the Act). Barwon Health seeks to stay both the decision 1 and order2 of Commissioner Roe issued on 11 February 2013. Commissioner Roe ordered that Dr Colson be reinstated to his former employment. He did not order the payment of compensation.

[2] The stay application was heard by me on 6 March 2013. Mr McDonald of Senior Counsel appeared on behalf of Barwon Health. Mr Millar of Counsel appeared on behalf of Dr Colson.

[3] At the time of hearing Barwon Health had not complied with the order of Commissioner Roe. Although Dr Colson was rostered to commence surgery on Monday, 11 March 2013 no wages had been paid to him as they should have been had the order been complied with from 11 February 2013. Barwon Health sought, in addition to a stay of the reinstatement of Dr Colson, that Barwon Health should be absolved from liability to make the payments arising from Commissioner Roe’s order. This included those payments already due and unpaid, as well as those which would become due.

[4] The originating application, filed by Dr Colson pursuant to s.394 of the Act, was heard before Commissioner Roe on 14, 15, 22 and 30 January 2013. The Commissioner heard evidence from a number of witnesses. In his decision of 11 February 2013 he undertook a detailed examination and consideration of the evidence before him. His reasons were detailed and his examination and consideration of the matters to which his attention is directed by the Act was comprehensive.

[5] The principles applicable to a determination of whether or not a stay order should issue were discussed in a Full Bench decision of the Australian Industrial Relations Commission in Edghill v Kellow-Faulkner Motors Pty Ltd 3:

“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect 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.”

[6] Having considered the submissions of Mr McDonald and Mr Millar I am not persuaded that Barwon Health has an arguable case with reasonable prospects of success. I am not satisfied that the balance of convenience is in favour of ordering a stay of Commissioner Roe’s decision. I decline to do so.

[7] The application for a stay of Commissioner Roe’s decision and order is dismissed.

SENIOR DEPUTY PRESIDENT

Hearing details:

2013

Sydney/Melbourne videolink

6 March

 1   PR533755

 2   PR533824

 3   S4216

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