BHP Coal Pty Ltd T/A BHP Billiton v Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWC 2074

[2018] FWC 2074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

BHP Coal Pty Ltd T/A BHP Billiton
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/1720)

DEPUTY PRESIDENT COLMAN MELBOURNE, 16 APRIL 2018

Appeal against decision [2018] FWC 1453 of Deputy President Asbury at Brisbane on 9 March 2018 in matter number C2016/6024 – stay of decision

[1] This decision concerns an application for a stay order by BHP Coal Pty Ltd. The stay is sought pursuant to s.606 of the Fair Work Act 2009 (the Act) in relation to an appeal against a decision of Deputy President Asbury, in which she determined a dispute arising under the dispute settlement procedure in clause 37 of the BMA Enterprise Agreement 2012 (Agreement).

[2] The dispute concerned Mr Thomas Goldspring, an employee of the company employed at the company’s Goonyella Riverside Mine. Mr Goldspring’s duties include operating vehicles and mobile equipment. From 23 August to 5 September 2016, Mr Goldspring’s Queensland Driver’s Licence was suspended. During this period, he was unable to perform his usual duties. The company directed Mr Goldspring not to attend for work, and did not pay him.

[3] The Deputy President was asked to resolve the dispute by answering two questions. The first question was whether the company had an obligation to provide Mr Goldspring with work, other than work involving the operation of vehicles or mobile equipment, during the relevant period. The Deputy President concluded that the answer to this question was ‘no’. The second question was whether in all of the circumstances Mr Goldspring should have been paid for the relevant period. The Deputy President answered this question in the affirmative. The company’s notice of appeal contends that the Deputy President’s answer to the second question was wrong.

[4] The company indicated in its notice of appeal that it sought a stay of the Deputy President’s decision. On 10 April 2018, the CFMMEU advised the registry of the Commission that it had no objection to the granting of the stay sought. On the same day, the company requested the Commission to confirm whether it would be prepared to grant a stay without hearing further from the parties.

[5] Although the stay is not contested, it remains for the Commission to decide whether to exercise its discretion to grant a stay under s.606. The application must be decided.

[6] On 11 April 2018, I advised the parties that I would be content to determine the stay application without hearing from the parties. However, I asked the union to confirm that it did not contest that there is an arguable case in the present matter.

[7] By email dated 13 April 2018, the union reiterated that it did not oppose the making of the stay sought.

[8] Section 606(1) of the Act provides as follows:

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.

[9] In deciding whether to exercise its discretion to grant a stay, the Commission must first be satisfied that the appellant has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal. 1 In addition, the balance of convenience must weigh in favour of the decision or order subject to appeal being stayed.2

[10] Having reviewed the grounds in the notice of appeal and the materials filed, I consider that there is an arguable case that permission to appeal should be granted, and that the correct answer to the second question posed for determination is ‘no’, based on the contentions set out in ground 2 of the notice of appeal.

[11] I am further satisfied that the balance of convenience favours the granting of a stay, given that the sum in question is relatively small, and that if the sum were to be paid to Mr Goldspring now, and the appeal is successful, it would need to be repaid.

[12] I have also considered whether a stay is necessary in the present case. I note that the Deputy President did not issue an order, and her decision does not require or anticipate that the company act on the decision by a particular date. Nevertheless, the Commission has now determined the dispute at first instance and clause 37.19 of the Agreement provides that such a decision is binding on the parties. Clause 37.20 states that nothing in clause 37.19 removes the right of either party from appealing a decision in accordance with the Act. Nevertheless, if a stay were not issued, the company could be considered to be under an obligation to make the relevant payment promptly.

[13] Accordingly, I am satisfied that there is utility in a stay.

Conclusion

[14] Taking the above matters into account, I am satisfied that I should make an order staying the decision of Deputy President Asbury in [2018] FWC 1453, pending the determination of the appeal.

[15] An order giving effect to my decision is issued separately in PR601910.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR601909>

 1   Kellow-Falkiner Motors Pty Ltd v Edghill Print S2639, 24 January 2000 at [5]; applied in Bank of Sydney Ltd v Repici[2015] FWC 5511 et al.

 2   Ibid. See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13].