Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy

[2016] FWC 2861

[2016] FWC 2861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Essential Energy
(C2016/1005)

VICE PRESIDENT CATANZARITI SYDNEY, 11 MAY 2016

Appeal against decision [2016] FWC 1826 of Senior Deputy President Hamberger at Sydney on 11 April 2016 in matter number C2015/5686 - stay granted.

[1] On 11 April 2016, Senior Deputy President Hamberger issued a decision 1 (Decision) pursuant to s.739 of the Fair Work Act 2009 (the Act) which found that in redeploying 29 Vegetation Officers in August 2015, Essential Energy (Respondent) was acting in conformity with its obligations prescribed by clause 3.6(a) of the Essential Energy Enterprise Agreement 2013 (the Agreement).

[2] On 2 May 2016 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for a stay of the Decision on the basis that the Senior Deputy President erred in construing clause 3.6(a) of the Agreement.

[3] On 3 May 2016 the Respondent’s Representative informed the Fair Work Commission that the Respondent does not oppose the stay application in light of permission to appeal and the appeal being scheduled for 22 June 2016.

Applicable Principles and General Approach

[4] The principles applicable to the determination of a stay application are stated in Kellow-Falkiner Motors Pty Ltd v Edghill, 2in 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.”

Consideration

[5] With regards to the CEPU’s submission regarding the interpretation of clause 3.6(a) of the Agreement, I accept that there is an arguable case with reasonable prospects of success in relation to the merits of the matter. Considering that the Respondent does not oppose the stay application, I certainly would not conclude at this point in time that the CEPU’s grounds of appeal are unarguable.

[6] I accept that the balance of convenience favours the granting of a stay particularly given the fact that the Respondent does not oppose the stay application. 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.

[7] This matter will be set down for both permission to appeal and appeal on 22 June 2016.

Conclusion

[8] The Senior Deputy President’s decision is stayed pending the hearing and determination of the CEPU’s appeal.

VICE PRESIDENT

 1   [2016] FWC 1826

 2   [2000] AIRC 1207

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