Mr Troy Cameron v Murrin Murrin Operations Pty Ltd

[2020] FWC 2088

[2020] FWC 2088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Troy Cameron
v
Murrin Murrin Operations Pty Ltd
(C2020/2472)

DEPUTY PRESIDENT ASBURY BRISBANE, 22 APRIL 2020

S. 606 Application for stay of decision – Approach to determining whether to stay a decision – Stay will not have utility in the present case – Application for a stay refused.

BACKGROUND

[1] Mr Troy Daniel Cameron seeks permission to appeal and appeals a Decision of Deputy President Beaumont issued on 31 March 2020. 1 In that Decision the Deputy President found that there were not exceptional circumstances warranting an extension of time for Mr Cameron to make an application for an unfair dismissal application and dismissed Mr Daniel’s application for an unfair dismissal remedy.

[2] In his Form F7 – Notice of appeal Mr Cameron sought a stay of the decision under s. 606 of the Fair Work Act 2009 (the Act). This Decision concerns the stay application. On 20 April 2020 I issued a Statement and Directions indicating that I had formed a provisional view that there would be no efficacy in granting a stay and setting out the basis for my provisional view. Mr Cameron was invited to respond to the matters set out in the Statement and informed that if he did not do so by 12.00 midday on 21 April 2020 I would confirm my provisional view and dismiss the stay application. Mr Cameron corresponded with my chambers in relation to other matters relevant to his appeal. Mr Cameron was reminded of the requirement that he respond to my statement and directions in relation to his stay application. Mr Cameron did not respond. My reasons for refusing the stay application are as follows.

THE APPROACH TO GRANTING A STAY

[3] The power to grant a stay pending the hearing and determination of an appeal lodged under s.604 is contained in s.606(1), which provides:

“(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.”

[4] The principles concerning whether a stay application will be granted are well-established. They are as stated in Edghill v Kellow-Falkiner Motors Pty Ltd:

“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.”  2

[5] However, as Vice President Hatcher pointed out in CFMEU v Collinsville Coal Operations Pty Limited 3 the application of those principles is necessarily subject to it being demonstrated at the outset by the applicant for a stay that there is an operative decision with ongoing effect that is capable of being stayed. It was also stated in that Decision that a stay should have a practical effect.

[6] The power to grant a stay pending the hearing and determination of an appeal lodged under s.604 is contained in s.606(1), which provides:

“(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.”

CONSIDERATION

[7] In the present case the decision against which the stay is sought was that Mr Cameron’s unfair dismissal application be dismissed and an order to that effect was issued. If Mr Cameron is granted permission to appeal and his appeal is upheld, the outcomes may include that the order dismissing his application is quashed or that a further decision is made in relation to whether Mr Cameron should be granted a further period in which to make his unfair dismissal application.

[8] The matter is listed for hearing on 8 May 2020, concerning the issue of whether Mr Cameron should be granted permission to appeal the decision. If Mr Cameron is granted permission, a further hearing dealing with Mr Cameron’s appeal will be listed and a decision in relation to it issued at a point after that hearing. If Mr Cameron is granted permission to appeal the decision and if the appeal is determined in Mr Cameron’s favour, then a stay will not add or detract from the relief he may obtain.

[9] Mr Cameron has no present right he may not otherwise obtain if he is granted permission to appeal. Mr Cameron has no interest that requires protection by the stay being issued.

[10] A stay will not alter the status quo in any substantive manner or in a manner relevant to the appeal. If the appeal is dismissed the decision and order under appeal will stand as they do in the current circumstances. Further, it cannot be said that the balance of convenience favours the grant of a stay.

CONCLUSION

[11] For these reasons I refuse Mr Cameron’s application for a stay of the Decision in [2020] FWC 1566.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Troy Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 1566.

 2   [2000] AIRC 785, Print S2639 at [5]

 3   [2014] FWC 4276.