National Union of Workers - New South Wales Branch v Nick Belan

[2017] FWC 1439

[2017] FWC 1439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

National Union of Workers - New South Wales Branch
v
Nick Belan
(C2017/1273)

VICE PRESIDENT HATCHER SYDNEY, 13 MARCH 2017

Appeal against an interlocutory decision in transcript of Deputy President Dean at Sydney on 8 March 2017 in matter number U2016/7463.

[1] This is an edited version of the decision given on transcript at the conclusion of the hearing of this matter on 9 March 2017.

[2] Mr Nick Belan has been dismissed from his employment as an official of the National Union of Workers - New South Wales Branch (NUW) on the basis, I am informed by the parties, of admissions he has made in the Royal Commission on Trade Union Governance and Corruption concerning unauthorised use of his union credit card. He has applied to this Commission for an unfair dismissal remedy against the NUW, namely reinstatement. The matter is currently being heard before Deputy President Dean. In the hearing Mr Belan has called as a witness Mr Derrick Belan, his brother and the former Secretary of the NUW. Mr Belan has or will give evidence concerning the authorisation of the credit card expenditure of Mr Nick Belan. Mr Derrick Belan has himself been charged with a number of criminal offences arising from his period in office as the NUW Secretary, including charges of financial misappropriation.

[3] Mr Derrick Belan commenced giving evidence before the Deputy President on Wednesday 8 March 2017. Shortly after his cross-examination by the NUW’s counsel began, and it became apparent that Mr Derrick Belan intended to invoke the privilege against self-incrimination in respect of any matter the subject of the criminal charges against him, the NUW applied for an indefinite adjournment of the proceedings pending the finalisation of the criminal charges against Mr Derrick Belan. It claimed that it was not in a position to properly test Mr Derrick Belan’s credit in the circumstances described. The Deputy President refused the adjournment application and indicated that the matter would resume before her on Tuesday 14 March 2017. That decision was issued on transcript and later in the day the Deputy President issued a statement confirming that decision. It simply reads:

“This Statement confirms the decision given in transcript on 8 March 2017 to refuse the Respondent’s application for an adjournment of U2016/7463 pending the outcome of Mr Derrick Belan’s criminal proceedings.”

[4] The NUW has now lodged an appeal against that decision, for which permission to appeal is required. As part of that appeal it has also sought on an urgent basis a stay of the decision under appeal having regard to the anticipated resumption of the proceedings before the Deputy President on 14 March 2017. The NUW’s Notice of Appeal contends among other things that the learned Deputy President was wrong to refuse the adjournment and thus permit the reception of evidence from Mr Derrick Belan, that the decision placed the NUW at a significant and irremediable disadvantage, that the decision failed to properly balance the competing interests as between the applicant and the respondent, and that as a matter of fundamental fairness the NUW should not be forced to deal with evidence from Mr Derrick Belan prior to the disposition of the very serious criminal charges against him.

[5] This decision is concerned with the NUW’s application for a stay. The principles applying to stay applications in this jurisdiction are well established. They are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 1This decision has been followed in a number of cases decided under the Fair Work Act 2009 (FW Act). Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects 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] In applying those principles, the required assessment of an appeal’s prospects of success for the purposes of determining a stay application is necessarily of a preliminary nature only, since the Commission will not have had the benefit of hearing the appellant’s full argument and may not have had the opportunity to comprehensively peruse the case materials. 2

[7] In considering the stay application it is necessary to state at the outset that I have some doubt as to the efficacy of the application. Under s.606 of the FW Act, the Commission is empowered to grant a stay of the decision under appeal, not a stay of the proceedings that are the subject of the decision, which it appears to me is in substance what the appellant here desires. In this connection I refer to a decision of this Commission in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited. 3 However, notwithstanding those doubts, I shall proceed on the presumption that a stay order to the effect sought may be granted under the FW Act.

[8] Having regard to the materials and arguments put before me at this stage, I am not satisfied that the appeal is arguable with sufficient prospects of success. The decision made by the Deputy President was an interlocutory procedural decision of a discretionary nature. It is well established that appeals from such decisions will not ordinarily be encouraged. In considering the adjournment application, the Deputy President was required to undertake a balancing of justice between the parties. The fact that a particular witness invoked the privilege against self-incrimination could not, as part of that balancing exercise, have been by itself determinative of the discretionary judgement that was required to be made. In that respect I refer to the Federal Court decision in Websyte Corporation Pty Ltd v Alexander (No.2). 4

[9] In circumstances where:

1. Mr Nick Belan sought reinstatement as a remedy in the substantive proceedings, which suggests that the matter should be heard sooner rather than later;

2. by the time the adjournment application was made he had already given the entirety of his evidence without apparent difficulty;

3. the adjournment sought is for an indefinite period in circumstances where there could be no certainty whatsoever as to when the criminal proceedings against Mr Derrick Belan would be completed; and

4. the matters adverse to the credibility of Mr Derrick Belan, upon which the NUW sought to rely, were already the subject of adverse findings by the Royal Commission which the NUW is in a position to place before the Commission;

it appears to me that the Deputy President’s refusal of the adjournment application was a patently reasonable exercise of the discretion. The NUW has not pointed to any particular error in the decision, at least on the arguments put to date. Its appeal only appears to exhibit general dissatisfaction at the outcome arrived at.

[10] In those circumstances, it is not necessary for me to deal with in any detail the balance of convenience. I simply indicate that had it been necessary to do so, I would not have been persuaded that balance of convenience positively favoured the grant of a stay.

[11] In those circumstances the appellant’s application for a stay is dismissed. As earlier indicated the parties can expect the appeal to be listed for hearing at least on the question of permission to appeal, if not in its entirety, in the period of 1-5 May 2017.

VICE PRESIDENT

Appearances:

J. Nolan of counsel with M. Burns solicitorfor the National Union of Workers – New South Wales Branch.

P. Lowson of counsel with A. Mataere solicitor for N. Belan.

Hearing details:

2017.

Sydney:

9 March.

 1   [2000] AIRC 785, Print S2639

 2  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 3   [2014] FWC 4276

 4 [2012] FCA 562

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