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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the employer, Essential Energy. The union challenged a decision made by the Fair Work Commission (FWC), specifically the dismissal of an appeal related to the dismissal of an employee. The case was heard in the Federal Court of Australia. The union sought to appeal a decision of the FWC which had dismissed its appeal against a decision of Senior Deputy President Hamberger. This decision pertained to a matter originally heard in Sydney on 11 April 2016, under the matter number C2015/5686. The union's appeal was focused on the merits of the dismissal of its member, and the FWC's rejection of the union's argument regarding procedural fairness and the validity of the dismissal.

The legal issues that the court had to address involved the scope of judicial review of FWC decisions, the standard of review applicable to the FWC's decision-making process, and the merits of the union's appeal concerning the dismissal of the employee. The union argued that the FWC had erred in law by not adequately considering the union's submission regarding procedural fairness and the validity of the dismissal. The union also contended that the FWC had failed to give proper weight to relevant evidence and had misapplied the law in dismissing its appeal.

The court examined the nature of the FWC's decision-making process and the applicable standard of review. It found that the FWC had exercised its discretion in a manner that was open to it and had not erred in law. The court held that the FWC's approach to the evidence and the law was sound, and that the union's arguments regarding procedural fairness and the validity of the dismissal did not succeed. The court concluded that the FWC's decision was not flawed and that the union's appeal should be dismissed. The stay of the FWC's decision was granted pending the outcome of the union's appeal.

The court's final order was that the stay of the FWC's decision, originally made on 11 April 2016, would remain in effect pending the outcome of the union's appeal. This meant that the union's appeal would proceed, but the effect of the FWC's decision would be temporarily suspended. The union's appeal against the FWC's decision was to be determined on its merits, but the stay ensured that the employee's dismissal would not be implemented until the appeal was finally resolved.

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

DECISION

Applicable Principles and General Approach

Consideration

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established