Brian Clothier v Ngaanyatjarra Media
[2012] FWA 5258
•21 JUNE 2012
[2012] FWA 5258 |
|
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Brian Clothier
v
Ngaanyatjarra Media
(C2011/6957)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | SYDNEY, 21 JUNE 2012 |
Appeal in matter number C2011/5544.
[1] This is an application for a stay order by Mr Brian Clothier (the Applicant). The order is sought in relation to an appeal lodged by Mr Clothier regarding proceedings before Fair Work Australia (FWA) brought by him under s.365 of the Fair Work Act 2009 (the Act), in which he claimed that his former employer, Ngaanyatjarra Media (the Respondent) contravened various provisions of the Act in relation to the termination of his employment.
[2] Those proceedings were discontinued following an agreement being reached between the parties in full and final settlement of all claims by the Applicant arising out of his employment with the Respondent and the termination of his employment.
[3] The Applicant filed an appeal in relation to that matter seeking, in effect, that the settlement agreement be set aside by FWA to such an extent as would allow him to pursue claims of unpaid overtime through the Fair Work Ombudsman. It would seem that the Applicant is not seeking in the appeal to challenge the disposition of applications under ss.372 and 394 of the Act that he lodged with FWA in addition to the matter appealed.
[4] The hearing of the stay application was conducted by telephone on 19 June 2012. In the hearing, the Applicant represented himself and the Respondent was represented by its General Manager, Mr Chris Hobart.
[5] In the hearing I raised with the Applicant a number of fundamental problems in relation to the appeal. In particular it was noted that s.604 of the Act only permits an appeal against a “decision of FWA”. That phrase is defined in s.598 of the Act as including “any definition of FWA however described”, but excluding the outcomes of processes carried out under s.595(2). That section allows FWA to deal with disputes otherwise than by arbitration, including by mediation or conciliation. The matter appealed was dealt with in a conference under s.368 of the Act, at which Commissioner Hampton exercised FWA’s powers under s.595(2) to conciliate or mediate the dispute. The outcome of that matter is therefore not a “decision of FWA”, and so no appeal lies against it under s.604.
[6] It was indicated that a stay order would only be made where there was an arguable case in relation to both permission to appeal and the merits of the appeal, and where the balance of convenience favoured the granting of a stay.
[7] Having heard the submissions of the parties, I am satisfied that there is no basis to conclude that there is an arguable case in relation to either permission to appeal or the merits of the appeal. Further, it would seem from what has been put by the parties and filed in the appeal that the appeal has no reasonable prospects of success (see s.611 of the Act).
[8] Accordingly the application for a stay order is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr B Clothier, the Applicant.
Mr C Hobart for Ngaanyatjarra Media.
Hearing details:
2012.
Sydney (telephone hearing):
June 19.
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