Neonlyn Pty Ltd T/A Webbers Retravision Gladstone v Ms Trudy Leschniok

[2013] FWC 7848

[2013] FWC 7848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Neonlyn Pty Ltd T/A Webbers Retravision Gladstone
v
Ms Trudy Leschniok; Mr Michael Penrose; Mr Paul Dowley; Ms Ann-Marie Boston; Ms Crystal Smith; Ms Natalie Anderson
(C2013/6155)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 8 OCTOBER 2013

Appeal against decision [[2013] FWC 5417] of Commissioner Spencer at Brisbane on 6 September in matter number C2013/4929 - Application for stay Order

Introduction

[1] Neonlyn Pty Ltd (Appellant) conducted a business trading as Webbers Retravision Gladstone which ceased trading on or about 28 June 2013. The cessation of trading resulted in six employees, who are Respondents to the appeal (Respondents), employed in the business having their employment terminated on redundancy grounds. As a consequence of the termination of employment on redundancy grounds, those employees became entitled to redundancy pay under section 119 of the Fair Work Act 2009 (Act).

[2] On 27 June 2013 the Appellant applied to the Fair Work Commission (Commission) for a determination under section 120(2) that the amount of redundancy pay to which employees would become entitled under section 119 be reduced. An amended application was lodged on 5 July 2013. The Appellant’s application was dismissed by Commissioner Spencer on 6 September 2013 1. The Appellant has lodged an appeal against the Commissioner’s decision on 25 September 2013 and has sought a stay of the whole of the decision.

[3] I heard the Appellant’s stay application on 4 October 2013 and I dismissed the application. These are my reasons for so doing.

Principles

[4] It is well established that in deciding whether to exercise a discretion to grant a stay order, the Commission must first be satisfied that there is an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the merits of the appeal, and that the balance of convenience favours the granting of a stay order 2.

Consideration

[5] For the purpose of disposing of the stay application it is not necessary for me to form a view as to whether there is an arguable case with some reasonable prospect of success in respect of permission to appeal and the merits of the appeal because I have concluded that the balance of convenience plainly does not favour the grant of a stay order. This is because no utility would be served by staying the Commissioner’s decision. There is no positive order arising from the Commissioner’ s decision with which the Appellant is required to comply, and from which short-term relief from compliance should be granted pending the determination of the appeal. Further, there is no act from which the Appellant must refrain by reason of the decision which it should be permitted to engage in pending the determination of the appeal.

[6] The effect of granting a stay of the Commissioner’s decision is the same as the position where no stay granted, namely, the Appellant is required to comply with section 119 of the Act. The Commissioner dismissed the Appellant’s application to be relieved from the redundancy pay obligations under section 119 of the Act. A stay order will not relieve the Appellant of this obligation.

[7] The effective relief that the Appellant seeks by way of its stay application is relief from the obligation to meet redundancy pay requirements of section 119 of the Act. Alternatively it seeks an interim determination that it should be relieved from that obligation pending the hearing and determination of the appeal. Since the Commissioner’s decision did not impose the obligation, a stay of that decision will not relieve the obligation. It is the Act which imposes that obligation. Whether the Appellant will ultimately be granted the relief it seeks is, subject to permission to appeal being granted, a question that the appeal bench will consider and may decide. A stay application in the present circumstance is neither an appropriate nor effective vehicle through which to determine whether the relief sought should be granted. Nor is it an appropriate vehicle through which to make an interim determination under section 120(2) of the Act.

Conclusion

[8] The application for a stay of the Commissioner’s decision is dismissed.

DEPUTY PRESIDENT GOSTENCNIK

Appearances:

J. Webber for Neonlyn Pty Ltd T/A Webbers Retravision Gladstone by telephone

P. Dowley on behalf of the respondents by telephone

Hearing details:

2013.

Melbourne:

October 4

 1   [2013] FWC 5417

 2   Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) and applied in this tribunal see for example Boom Logistics Limited v Bell and Mackay, [2013] FWC 1017 per Boulton J, GM Holden Ltd v Symonds, [2013] FWC 332 per Smith DP, Vondoo Hair v Crockett, [2012] FWA 9553 per Watson SDP, Vita Property Group Pty Ltd Clayworth, [2012] FWA 6547 per Drake SDP, DesignInc (Sydney) Pty Limited v Xu, [2012] FWA 1088 per Watson SDP and Suncorp Staff Pty Limited v Brewer, [2012] FWA 823 per Boulton J

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