Blue Lake Milling Pty Ltd v National Union of Workers

[2016] FWC 6269

[2016] FWC 6269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Blue Lake Milling Pty Ltd
v
National Union of Workers
(C2016/5156)

VICE PRESIDENT CATANZARITI MELBOURNE, 1 SEPTEMBER 2016

Appeal against decision [2016] FWC 5857 of Commissioner Ryan at Melbourne on 18 August 2016 in matter number B2016/839. Stay issued.

[1] On 2 August 2016 the National Union of Workers (Respondent) applied pursuant to s.236 of the Fair Work Act 2009 (Act) for a majority support determination. On 18 August 2016 Commissioner Ryan issued a decision (decision) 1 and a determination2 which found that a majority of the employees employed by Blue Lake Milling Pty Ltd (Appellant) at its facilities in Bordertown, South Australia and Dimboula, Victoria want to bargain with the Appellant for an enterprise agreement.

[2] On 29 August 2016 the Appellant filed a Notice of Appeal and requested a stay of the Commissioner’s determination. I heard the parties on 1 September 2016 in relation to the stay application, and made a decision to grant the stay. At the conclusion of the hearing I informed the parties of my decision and that the reasons for my decision would be published in due course. These are the reasons for my decision.

Applicable Principles and General Approach

[3] There was no dispute between the parties as to the principles applicable to the determination of the stay application. They are as stated in Kellow-Falkiner Motors Pty Ltd v Edghill, 3in which the Full Bench approved the following statement of principle:

“[5] 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] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

Submissions

[4] The Appellant contended that the Commissioner erred by failing to provide the Appellant with procedural fairness. The Appellant also posited that the Commissioner erred by failing to properly consider or hear any evidence on the veracity, reliability or capacity of the Respondent’s petition to demonstrate majority support particularly in light of the relevant factual history associated with that question as between the Appellant and the Respondent. The Appellant also submitted that the Commissioner erred by failing to consider s.237(2)(d) of the Act as required. On this basis the Appellant contended that it has an arguable case and that the balance of convenience favours the granting of a stay.

[5] The Respondent opposed the stay application and, in oral submissions, contended that the balance of convenience does not favour the granting of a stay on the basis that the Appellant would not be disadvantaged if the stay was not granted. The Respondent pointed to the length of time that the matter has been alive to support its contention that the balance of convenience does not favour the granting of a stay.

Consideration

[6] I accept the Appellant’s contention that s.237(2)(d) of the Act prescribes that the Commission must be satisfied that it is reasonable in all the circumstances to make a majority support determination. The Appellant’s Notice of Appeal reveals a number of grounds of appeal concerning, but not limited to, s.237(2)(d) of the Act. These grounds of appeal, if successfully made out, could provide a basis for allowing an appeal against the Commissioner’s decision. I certainly could not conclude at this point in time that the Appellant’s grounds of appeal as stated in the Notice of Appeal are unarguable.

[7] In light of the above, I find that the Appellant has an arguable case with some reasonable prospect of success in respect of the question of leave to appeal and on the substantial merits of the appeal.

[8] Further, I am of the view that the balance of convenience favours the granting of a stay against the Commissioner’s decision on the basis that I cannot conclude at this point in time that the Appellant would not suffer a disadvantage if the decision was not stayed.

[9] Having considered the submissions of both parties and the authorities relating to the Commission’s discretion to grant a stay, I find in all the circumstances that a stay order is appropriate.

[10] This matter will be set down for both permission to appeal and the appeal on 15 September 2016.

Conclusion

[11] The Commissioner’s decision and determination is stayed pending the hearing and determination of the appeal.

VICE PRESIDENT

Hearing details:

1pm

1 September 2016

Melbourne

 1   [2016] FWC 5857.

 2   PR584428.

 3   [2000] AIRC 1207.

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