Mr Michael Priestley v Department of Parliamentary Services
[2011] FWA 4123
•1 JULY 2011
[2011] FWA 4123 |
|
DECISION |
Workplace Relations Act 1996
s.120 - Appeal to Full Bench
Mr Michael Priestley
v
Department of Parliamentary Services
(C2010/4490)
VICE PRESIDENT WATSON | SYDNEY, 1 JULY 2011 |
Application for a stay of decision [2010] FWA 2684 of Vice President Lawler at Melbourne on 20 July 2010 in matter number DR2009/1356.
[1] This decision concerns an application for a stay of the decision of Vice President Lawler of 20 July 2010. 1 The decision dismissed an application for a dispute resolution procedure to be conducted pursuant to s 709 of the Workplace Relations Act 1996 (the Act) to resolve a dispute arising under the Department of Parliamentary Services Union Collective Agreement 2008 - 2011 (the Agreement) between Mr Priestley and the Department of Parliamentary Services (DPS). The dispute raised by Mr Priestley related to the nature of duties that could be allocated to him and whether DPS had the right to require him to perform additional duties. The application was dismissed by Vice President Lawler on the basis that Fair Work Australia (FWA) does not have jurisdiction to deal with the dispute under the dispute procedure of the Agreement and that in any event there was no merit in the underlying dispute and no utility in FWA dealing further with the disputes.
[2] Mr Priestley contends that the stay should be granted as he has an arguable case in the appeal on the merits and in relation to leave to appeal and the balance of convenience favours the granting of a stay. It is well established that this is the test an applicant for a stay must meet in order to justify a stay being granted.
[3] In support of his submissions that there is an arguable case in the appeal Mr Priestley relied on an outline of submissions filed in the appeal on 3 February 2011. The DPS also referred to its outline of submissions to submit that there is not an arguable case that the appeal will succeed.
[4] An issue arises in this case as to the effect of granting the stay and the balance of convenience between granting the stay or permitting the decision to remain while the appeal is heard and determined. A stay is often sought in relation to a right or obligation created by a decision at first instance where it is more convenient that the pre-existing situation continues to apply until an appeal which is found to be arguable is determined. A dispute application which is dismissed on jurisdictional and merit grounds is not the type of matter that would be amenable to a stay application.
[5] Mr Priestley contends that the stay would do two things. First, it would prevent the DPS from allocating work to him in the manner subject of the dispute application. He submits that the stay would reinstate instruments that provide him with certain protections that have ceased to operate as a result of Vice President Lawler’s decision.
[6] Secondly, Mr Priestley contends that a stay would preserve his accrued rights so that the appeal can be dealt with after the expiration of the Agreement. The Agreement has a nominal expiry date of 30 June 2011 (clause 9). Mr Priestley contends that in bargaining for a new enterprise agreement he has sought a clause that would preserve accrued rights under the Agreement. The DPS did not agree to the inclusion of such a clause. 2 Apparently negotiations for a new agreement are continuing.
[7] The DPS contends that Vice President Lawler’s decision did not affect the parties’ conduct in the workplace. It contends that clause 20 of the Agreement provides for parties to a dispute to continue to work normally with workplace practices in accordance with the Agreement. It contends that this has been the situation prior to and since the decision of Vice President Lawler on 20 July and that a stay will not and should not affect that practice. It submits that there would be no utility in a stay order.
[8] The DPS also indicated that it would not raise an objection to the continuation of the appeal proceedings if a new enterprise agreement is made prior to the appeals being heard and determined. The appeals are listed for hearing before a Full bench in August this year.
[9] I am not satisfied that this is an appropriate matter for granting a stay. The decision did not create rights or obligations. Its continued operation does not affect the rights and obligations of the DPS or Mr Priestley that existed prior to the decision. There appears no barrier to Mr Priestley pursuing his appeal or any difference in the conduct of that appeal in the absence of the stay and if a stay were granted.
[10] For these reasons I do not believe that the balance of convenience favours the grant of a stay. It is unnecessary that I consider whether there is an arguable case that the appeal will succeed and I consider it preferable that I not express any views on that question.
VICE PRESIDENT WATSON
M. Priestley on his own behalf
J. Lovell of counsel with B. Boyer for the Department of Parliamentary Services
Hearing details:
2011.
Sydney - Canberra (by video link)
June, 22
1 [2010] FWA 2684
2 Transcript of proceedings, 22 June 2011 PN46 - PN49
Printed by authority of the Commonwealth Government Printer
<Price code A, PR510999>
0
0
0