Crawford Education Pty Limited T/A Reddam Els v Independent Education Union of Australia

[2015] FWC 8534

[2015] FWC 8534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Reddam House Limited; Crawford Education Pty Limited T/A Reddam ELS
v
Independent Education Union of Australia
(C2015/8045)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 10 DECEMBER 2015

Appeal against an orders for production and inspection of documents by Commissioner McKenna at Sydney on 8 December 2015 in matter number C2015/7387.

[1] This is an application by Reddam House Limited; Crawford Education Pty Limited T/A Reddam ELS (the Appellant) to stay orders to produce and inspect documents issued by Commissioner McKenna in C2015/7387 on 8 December 2015.

[2] The orders were issued on the application of the Independent Education Union of Australia (IEU).

[3] The IEU lodged an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure on 19 November 2015. The application identified two applicable agreements:

● Independent Schools NSW (Support and Operational Staff) Reddam House

Agreement 2011 – 2014 [AE891479]

● Independent Schools NSW (Teachers) Reddam House Agreement 2011 – 2014

[AE891475]

[4] The dispute relates to the Early Learning Service of the Reddam House school at Woollahra in Sydney. It appears that a new campus has also been established at St. Leonards. The issues in dispute relate to the identity of the employer and, as a consequence, the wages and conditions which are applicable. Related issues which are raised by the IEU are the hours of work and overtime rates applicable to employees. Employees are being requested, the IEU says, to sign new contracts of employment and two have been dismissed because of their refusal to sign, according to the IEU.

[5] The Commissioner dealt with this matter in conference on 23, 27 November 2015 and 4 December 2015.

[6] On 8 December 2015 she issued an order to produce relating to the employees “at the early learning centres known as Reddam ELS” with respect to:

● employment and wage records;

● the vote for the agreements;

● various documents relating to the corporate structure and licensing of the early learning centre.

[7] The order is returnable at 10.00 am Thursday, 10 December 2015.

[8] A further order was issued on 8 December 2015 limiting access to the employment and wage records to the IEU advocates in the case.

[9] On 8 December 2015 the Appellant lodged a Notice of Appeal against these orders and stay of the orders. The appeal is not yet listed for hearing.

[10] Section 606(1) of the Fair Work Act 2009 (the Act) provides that:

“If, under section 604 and 605, FWC hears an appeal from, or conducts a review of, a decision, FWC may (except as provided in subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that FWC considers appropriate, until a decision in relation to the appeal or review is made or FWC makes a further order.”

[11] Before a stay order is granted the Commission is required to be satisfied that an arguable case exists and that the balance of convenience favours the granting of a stay. The conventional test for granting a stay order was considered by Vice President Ross (as he then was) in Kellow-Faulkner Motors Pty Ltd v Edge Hill. (Print S2639). That approach was subsequently confirmed by a Full Bench (Print S4216)

[12] The stay order was dealt with in a hearing before me on 9 December 2015.

[13] The Applicant submitted that the stay should be granted because it has substantial jurisdictional and merit arguments against the order. The order, in relation to that part of the dispute, would be final relief. The balance of convenience therefore requires the stay to be granted.

[14] The Respondent submitted that the stay should not be granted because the order is procedural only and therefore it is appropriate for the Commission to proceed with the jurisdictional hearing scheduled for next week.

[15] I find that there is an arguable case which should be determined by a Full Bench. I accept that the order made is a step in the wider dispute, but failure to grant the stay would mean final relief, in respect of this aspect of the dispute, because the material the subject of the order would be required to be produced on 10 December, before the Appellant is able to present its full case.

[16] I also find that the balance of convenience supports a stay being granted because determination of this stage of the dispute, by a Full Bench, will be the most efficient way of dealing with the matter. Further, there is no substantial prejudice to the Respondent by the granting of the stay.

[17] An order (PR574918) in the terms of the amended order lodged today by the Appellant accompanies this decision.

DEPUTY PRESIDENT

Appearances:

I. Neil SC with C. Parkin, counsel and A. Crockett, solicitor for the Appellant.

A. Slevin, counsel with C. Matthews and R. Seals for the IEU.

Hearing details:

2015

Sydney

December 9.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR574912>