Burnham Real Estate v Carmen Barukzai

[2014] FWC 6682

[2014] FWC 6682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Burnham Real Estate
v
Carmen Barukzai
(C2014/1637)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 SEPTEMBER 2014

Appeal against decision [[2014] FWC 554618] of Commissioner Blair at Melbourne on 22 August 2014 in matter number U2014/10131.

[1] Burnham Real Estate Pty Ltd (Burnham) has appealed the decision of Commissioner Blair made in transcript on 14 August 2014 to dismiss its objection to Ms Barukzai’s unfair dismissal application. Burnham had submitted that it was small business. Commissioner Blair on 22 August 2014 issued an order 1 that Ms Barukzai was eligible to bring a claim under the Fair Work Act 2009 and referred the application to conciliation.

[2] At the hearing Mr Gerace, on behalf of Burnham, submitted that Commissioner Blair incorrectly applied s.50AAA of the Corporations Act 2001 (Corporations Act) and determined that there were associated ‘identities’ rather than associated ‘entities’.

[3] Further it was submitted that on the material before the Commission, Commissioner Blair erred when he concluded that Burnham had 15 employees at the relevant time.

[4] Mr Gerace submitted that the balance of convenience was in favour of a stay being granted because otherwise Burnham would have to prepare for a hearing which will involve both resources and time which will be thrown away if it is successful on appeal.

[5] Mr Gerace submitted that there was public interest in leave to appeal being granted because if Commissioner Blair is correct then the additional protection given to small business in unfair dismissal matters will be diminished as businesses which share advertising and some staff will be treated as associated entities.

[6] Ms Barukzai opposed the stay on the following grounds:

1. The appeal was not lodged within 21 days of the date of the decision and no application to extend time has been made.

2. While Commissioner Blair used the expression associated identities in his decision it was clearly a mistake and it is clear from the transcript that this is a reference to associated entities. It was submitted that Commissioner Blair had regard to the provisions in s.50AAA of the Corporations Act and he did not act on any wrong principle and did not allow any extraneous or irrelevant matters to guide him.

3. Commissioner Blair did not mistake the facts nor did he fail to take into account any material considerations.

4. There is no public interest as the case does not involve any matter of general application and there is not a diversity of decisions at first instance.

5. Further if a stay were granted it should be crafted so as to permit the conciliation conference to occur.

[7] The correct approach to an application for the grant of a stay order was considered by a Full Bench of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd and P Edghill, 2 which said as follows:

“[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.” [references omitted]

[8] The question of whether an employer has 15 employees or more is a question of fact. An error in finding that an employer had 15 or more employees would be a significant error of fact. The decision under review is not a discretionary decision. In this case Burnham have an arguable case on the merits of its appeal.

[9] While it is true that whether a particular employer has 15 employees is determined on the particular facts of each case the application of both s.50AAA and s.50AA of the Corporations Act has not been considered by a Full Bench of the Fair Work Commission.

[10] The Parliament has enacted special provisions for small businesses. Relevantly for this case, small businesses are given a year to assess whether to retain new employees and in that time those employees are not protected from unfair dismissal. The limits of those provisions raise public interest considerations.

[11] For these reasons I find that Burnham have an arguable case that it would be granted permission to appeal.

[12] I accept the submissions of Ms Barukzai that the conciliation of her application should be permitted to occur. That conciliation took place on 19 September 2014 and it did not resolve the matter.

[13] However I also accept the submissions of Burnham that if it is required to prepare for a hearing and it is successful on appeal it will have wasted both time and resources. Ms Barukzai made no submission that she would be prejudiced if her unfair dismissal application were stayed pending the appeal.

[14] In those circumstances I will stay the decision and order of Commissioner Blair until such time as the appeal is heard and determined. The stay will operate from the date of this decision.

DEPUTY PRESIDENT

Appearances:

C. Barukzai representing herself.

T. Gerace for Burnham Real Estate.

Hearing details:

2014.

Melbourne:

16 September.

 1   PR554618.

 2   Print S4216, at para 4. See also Print S2639 at para 5.

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