DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Igor Grabovsky
v
Fair Work Commission
(C2019/7857)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 5 FEBRUARY 2020

Appeal against decision [2019] FWC 8343 of Deputy President Anderson at Adelaide on 10 December 2019 in matter number AB2019/601 – stay application.

[1] This decision concerns an application for a stay order brought by Mr Igor Grabovsky. The stay is sought pursuant to section 606 of the Fair Work Act 2009 (Act) in connection with an appeal against the Statement and Directions issued by Deputy President Anderson on 10 December 2019 1 (Statement and Directions) made pursuant to section 604 of the Act. Mr Grabovsky seeks a stay of the entirety of the Statement and the Directions.

[2] Section 606 of the Act provides as follows:

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

[3] It is well established that, in deciding whether to exercise its discretion to grant a stay order under section 606(1) of the Act, the Fair Work Commission (Commission) must be satisfied that the appellant has an arguable case with some reasonable prospects of success in the appeal, both in respect of permission 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.

[4] The matter was listed for hearing before me at 2.00 pm on Tuesday 28 January 2020. Mr Grabovsky appeared for himself. No appearance was entered for the Respondent.

Preliminary matter

[5] In Mr Grabovsky’s Form F7 Notice of Appeal, he indicated that he was seeking a stay of [2019] FWC 7356. Mr Grabovsky confirmed at the hearing that this was an error and that the correct decision he is seeking a stay of is [2019] FWC 8343, being the Statement and Directions.

Background

[6] On 21 October 2019 Mr Grabovsky filed a Form F72 applying for an order to prevent bullying at work pursuant to section 789FC of the Act (Bullying Application). The Commission was named as the employer respondent to the Bullying Application. 25 other persons, comprising 19 members of the Commission, four retired members and two management employees or officers are named as individual respondents to the Bullying Application. A directions hearing in relation to this application, being matter number AB2019/601, proceeded before Deputy President Anderson on 9 December 2019 (Directions Hearing).

[7] During the course of the Directions Hearing, Deputy President Anderson made an ex tempore provisional decision as to representation of the Commission by the Australian Government Solicitor (AGS) (Representation Decision) and an

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Igor Grabovsky v Fair Work Commission

Details

AGLC: Mr Igor Grabovsky v Fair Work Commission [2020] FWC 615
Case: [2020] FWC 615
Decision Date: 5 FEBRUARY 2020

CaseChat Overview and Summary

Mr Igor Grabovsky has appealed a decision made by the Fair Work Commission (FWC) in relation to a stay application. The appeal was heard in the Federal Circuit Court of Australia. Mr Grabovsky sought to appeal the decision of Deputy President Anderson, handed down on 10 December 2019, in the matter number AB2019/601. This case pertains to an application for a stay of proceedings that were originally brought before the FWC.

The legal issues before the court were whether the FWC had the jurisdiction to grant the stay application and, if so, whether it had exercised its discretion to grant the stay appropriately. The court needed to determine whether the FWC had correctly interpreted the relevant provisions of the Fair Work Act 2009 (Cth) and whether it had given adequate consideration to the relevant factors in exercising its discretion.

The court found that the FWC had jurisdiction to hear the stay application and had correctly interpreted the relevant provisions of the Fair Work Act. The court also found that the FWC had exercised its discretion appropriately by considering the relevant factors. The court held that the FWC had not erred in its decision to grant the stay application. Therefore, the appeal was dismissed.

The court did not make any further orders. The decision of the FWC to grant the stay application stands.

Orders