Christopher Ross v Australian Postal Corporation
[2024] FWC 882
•5 APRIL 2024
| [2024] FWC 882 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Christopher Ross
v
Australian Postal Corporation
(C2024/1987)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 5 APRIL 2024 |
Application for a stay under s 606 – application refused
This is an edited version of a decision delivered ex tempore earlier this afternoon. Christopher Ross has applied for a stay under s 606 of the Fair Work Act 2009 (the Act) in connection with an appeal he has lodged against a decision of Deputy President Millhouse made on 28 March 2024 ([2024] FWC 802).
In her decision, the Deputy President declined to grant Mr Ross a stay order in respect of certain procedural decisions made by Commissioner Harper-Greenwell concerning his general protections application under s 365 of the Act. The Commissioner’s decisions addressed the threshold question of whether Mr Ross should be granted an extension of time within which to bring that application. The Commissioner set a hearing date of 9 April 2024 and directed Mr Ross to file materials in advance of the hearing. Mr Ross had asked the Commissioner to defer the extension of time hearing. The Commissioner declined to do so for reasons explained in her decisions. Mr Ross appealed those decisions to a Full Bench of the Commission and sought that they be stayed under s 606. The stay application was allocated to the Deputy President.
Before exercising the discretion to grant a stay under s 606 of the Act, the Commission must be satisfied that an appellant has an arguable case, with some reasonable prospect of success both in respect of permission to appeal and the substantive merits, and that the balance of convenience favours the decision under appeal being stayed until the appeal is determined. In her reasons for refusing a stay, the Deputy President stated that she did not consider that procedural decisions such as those made by the Commissioner were capable of being stayed, but that in any event Mr Ross had not made out an arguable case that permission to appeal should be granted, because it is well established that it is in the public interest to discourage appeals from procedural decisions. The Deputy President further stated that the appeal did not disclose an arguable case on the merits, and that the balance of convenience did not favour a stay order being made. Mr Ross has now appealed this decision, which will be determined in due course by a Full Bench. Mr Ross’s application for a stay in connection with his second appeal has been allocated to me for determination.
In his second notice of appeal, Mr Ross again seeks a stay of the Commissioner’s procedural decisions. He asks that the proceeding before the Commissioner be stayed, together with her directions. But the Commissioner’s decisions are the subject of the first appeal, not the second. Section 606 provides that where the Commission hears an appeal from a decision, it may order that the operation of the decision be stayed until the appeal is determined. It is only the decision that is under appeal that may be stayed under s 606. Mr Ross’s second appeal is an appeal from the decision of the Deputy President, not the Commissioner. There is no power under s 606 for the Commission to order a stay of a decision that is not the subject of the appeal in question. For this reason, Mr Ross’s application for a stay must be dismissed.
Should Mr Ross be thinking of amending his second notice of appeal to have the stay application cover the Deputy President’s decision, he should think again. Such an amended application would have no reasonable prospect of success. First, it would not make sense to seek a stay of a decision that has declined to grant a stay order, because there is nothing to stay. Secondly, the grounds on which the second notice of appeal is brought do not present an arguable case that the Commission should grant permission to appeal from the Deputy President’s decision, or that the Deputy President made any error. It is important that Mr Ross understand that an appeal is not an opportunity to make the same claim for a second time in the hope of a different outcome. Appeals exist for the correction of error, and in the absence of any error by the primary decision-maker, an appeal cannot succeed.
The application for a stay is refused.
DEPUTY PRESIDENT
Appearances:
C. Ross for himself
N. Cini for the Australian Postal Corporation
Hearing details:
2024
Melbourne
5 April
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