Paper Australia Pty Ltd Trading as Opal Australian Paper v Anthony May
[2025] FWC 1320
•12 MAY 2025
| [2025] FWC 1320 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Paper Australia Pty Ltd Trading AS Opal Australian Paper
v
Anthony May
(C2025/2638)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 12 MAY 2025 |
Application for stay of decision pending appeal [s 606]
This decision concerns an application by Paper Australia Pty Ltd trading as Opal Australian Paper (Opal) for a stay order pursuant to s 606 of the Fair Work Act 2009 (Cth) (the Act). The application is made in the context of an appeal against a Decision[1] and Order[2] issued by Commissioner Yilmaz on 20 March 2025. The Decision concerned a dispute about the right to request a flexible working arrangement, which the Commissioner arbitrated under ss 65B(4)(b) and 65C of the Act.
Mr May, the Respondent to this appeal, commenced employment with Opal in January 1985, having completed a boilermaker apprenticeship with the company. After obtaining further qualifications in fitting and turning, he ultimately assumed the responsibility of Team Leader Planner Roll Workshop. Mr May is a parent who shares caring responsibilities for three children with his wife. The children are school age, albeit the eldest was due to complete Year 12 in 2024.
From 2011 until July 2024, Mr May had in place an informal flexible working arrangement (FWA), which allowed him flexibility in respect of his start and finish times on a Thursday of each week. This flexibility allowed Mr May to cater for school pick up times and after school activities that formed part of his parental responsibilities.
The FWA ended when the General Manager of Opal advised Mr May and several other employees that a recent audit had identified that that flexible arrangements in relation to start and finish times were not compliant with the enterprise agreement.[3] Mr May subsequently applied for flexible working arrangements under s 65(1) of the Act on 9 August 2024.
The enterprise agreement in question is the Opal Australian Paper Maryvale Mill Mechanical & Engineering Store Enterprise Agreement 2024[4] (Agreement). Clause 18 of the Agreement provides a set roster for dayworkers (Roster). The Roster provides for three shifts of 10 hours on Tuesday, Wednesday, and Thursday, and one shift of 8 hours on either Monday or Friday, alternating on a fortnightly basis. Clauses 18.2 and 18.5 of the Agreement provide that the Roster is only variable by agreement between the parties.
Mr May’s request under s 65(1) of the Act to vary the Roster applicable to himself, would, if granted, have enabled him to work 8 hours on Thursday, and 10 hours on Monday or Friday, as relevant.
On 30 August 2024, Opal declined the request on the basis it did not comply with clause 18.6 of the Agreement. That is, Opal relied upon there being reasonable business grounds for declining the request, namely, the Agreement did ‘not provide a mechanism for changing the roster prescribed in clause 18.6 of the enterprise agreement between the employer and employee.’
Clause 18 of the Agreement, which is set out in full at paragraph [20] of these reasons, sets out the hours of work for dayworkers. It appears uncontroversial that Mr May fell within its scope.
Having attempted to resolve the dispute at the workplace level without success, Mr May sought an order from the Commission that Opal’s refusal to accept the flexible working arrangements was not on reasonable business grounds and that the flexible working arrangements should be granted.
Prior to arbitrating the dispute, the Commissioner held a conference, but the dispute remained unresolved. The matter proceeded to an arbitration; the Commissioner having determined that there was no jurisdictional impediment to the application.
Given the context of the dispute, the Commissioner considered the operation of Part 2-2 of the Act and its interaction with the terms of enterprise agreements. Ultimately, the Commissioner concluded that clause 18 of the Agreement could not be used ‘as an authority over the minimum NES’ (National Employment Standard or NES). The Commissioner expressed the following:
The request made under s.65 of the Act seeks a change to hours of work and that change is to clause 18 of the Agreement which restricts the FWA. Consequently, Paper Australia’s submission that Mr May may request a FWA, but the request cannot be granted where the Agreement provides otherwise cannot be construed that an inconsistent term in an industrial instrument is a reasonable business ground, noting however, that more beneficial terms in an instrument cannot be overridden by agreement between Mr May and Paper Australia.[5]
In determining whether to grant an order, and in considering the fairness of the matter, the Commissioner observed, amongst other factors, that Opal refused Mr May’s request to avoid a breach of the Agreement.[6] The Commissioner further considered that Opal had advanced an alternative of ‘make-up time’, of which there was evidence to suggest that this would be detrimental to Mr May, and that Opal had no competing interest, save its concern that the arrangement sought would result in a breach of clause 18.[7]
Relevant principles
Section 606 of the Act gives the Commission the discretionary power to stay the operation of whole or part of a decision the subject of an appeal. Section 606(1) of the Act provides as follows:
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 make a further order.
In deciding whether to exercise its discretion to grant a stay or order, the Commission must be satisfied that the appellant has an arguable case, with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.[8] Further, the balance of convenience must weigh in favour of the order subject to appeal being stayed.[9] Accordingly, both ‘elements’ are necessary conditions to the grant of a stay.
In determining a stay application, the Commission must assess the strength of the appellant’s case without the benefit of hearing the appellant’s full argument and usually without the opportunity to undertake a full analysis of the case materials. Accordingly, the consideration of whether the appellant raises an arguable case with some reasonable prospect of success is necessarily a preliminary assessment only.
Legislative provisions and industrial provisions
Division 4 of Part 2-2 of the Act sets out the employee entitlement to ‘Requests for flexible working arrangements.’ That is, an employee is entitled under the Act to request from her or his employer, flexible working arrangements. Whilst s 65 of the Act is concerned with the request for flexible working arrangements, s 65A addresses the response to such requests, s 65B attends to disputes about the operation of Division 4, and s 65C sets out the provisions relevant to dealing with a dispute by way of arbitration. I will further address these provisions shortly but suffice to say, an entitlement to request flexible working arrangements, is a NES.
It is uncontroversial that an employer must not contravene a provision of the NES,[10] and insofar as a NES interacts with the terms of an enterprise agreement, an enterprise agreement must not exclude the NES or any provision of the NES.[11] The NES have effect subject to terms included in an enterprise agreement,[12] and an enterprise agreement may also include terms that are ancillary or incidental to the operation of an employee entitlement under the NES[13] or terms that supplement the NES but with the qualification – to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the NES.[14]
To the extent that a term of an enterprise agreement contravenes s 55 of the Act, it has no effect.[15]
Turning to the Agreement, clause 2 of the Agreement sets out the following:
2. RELATIONSHIP TO AWARD
2.1The “Pulp and Paper Industry (Maintenance and Services) Award 2003” (Award) as it stood at 1 March 2006 will be incorporated into and read in conjunction with this Agreement. Where any dispute arises about how the provisions of this Agreement are to apply, the provisions of the Award will be used as a guide in the interpretation and application of this Agreement.
2.2Where there is any inconsistency between an express provision of this Agreement and a provision in the Award, the provisions of this Agreement will prevail to the extent of any inconsistency.
2.3The National Employment Standards (NES) applies at all times to employees covered under this Agreement. Where there is an inconsistency between this Agreement and the NES, the more beneficial term to the employee will apply to the extent of inconsistency. Where the NES is varied to provide a benefit higher than that contained in the Agreement, the NES will apply to the extent of the inconsistency.
Clause 18 of the Agreement sets out the hours of work for dayworkers. Clause 18 reads as follows:
18.1 Dayworkers work a four-day week roster, between 6 am and 6 pm Monday to Friday inclusive, provided that the spread of hours herein prescribed, and the meal breaks, may be altered by agreement between the parties covered by this Agreement.
18.2 Dayworkers agree to work 38 hours but be paid for 36 hours, on the basis that Dayworkers work a 4-day week. Accordingly, the parties have agreed that any change to this roster for Dayworkers will require the agreement of the parties or a new replacement Agreement.
18.3 The thirty-eight (38) ordinary hours (paid 36 hours) for Dayworkers shall be worked over a four-day week in accordance with the roster profile set out below.
18.4 Start times for the commencement of Day Shift under the roster profile will be
7.00 a.m. or may be varied to between 6.00 a.m. and 7.30 a.m. as agreed by the
majority of employees in the workplace or a section or sections of it.18.5 Notwithstanding any other provision of this Agreement, a change to the 38
ordinary hours 4 day per week roster may only be made by agreement between
the parties to this Agreement.18.6 The Unions covered by this Agreement must be informed by the Company of the
intention to change the roster and be given a reasonable opportunity to
participate in the negotiations regarding the change.
Clause 2.1 of the Agreement provides for the incorporation of the Pulp and Paper Industry (Maintenance and Services) Award 2003 (PPIA). The PPIA addresses the ordinary hours of work and, in addition, addresses the concept of ‘make up time’. Clause 22.1 of the PPIA is in the following terms:
22.1 Ordinary hours of work
22.1.1 The ordinary hours of work for day workers will not exceed an average of 38 per week. Provided that the spread of hours shall be determined and may be altered by agreement between the employer and the majority of employees in the plant or work section concerned.
Any agreement reached must be recorded in the time and wage record kept by the employer in accordance with Division 1 of Part 9A of the Workplace Relations Regulations.22.1.1(a) If the employees are members of a union bound by the award, the employees may be represented by the union in meeting and conferring with the employer about the implementation of the facilitative arrangements.
22.1.1(b) The union must be given a reasonable opportunity to participate in negotiations regarding the proposed implementation of a facilitative provision. Union involvement does not mean that the consent of the union is required prior to the introduction of agreed facilitative arrangements.
22.1.2 The ordinary hours of shift workers will not exceed an average of 38 per week inclusive of crib time.
…
22.7 Make up time
[22.7 inserted by PR968575 ppc 30Jan06]
An employee may elect, with the consent of the employer, to work make up time, under which the employer takes time off ordinary hours and works those hours at a later time.
Consideration
By its notice of appeal, Opal is seeking a stay of the Decision and Orders. The grounds of the appeal are as follows:
The Commissioner erred in law by concluding (at paragraphs [42], [44], and [50] of the Decision) that a proposed flexible work arrangement’s inconsistency with an applicable enterprise agreement cannot be a reasonable business ground for refusing a flexible work request.
The Commissioner erred in law in concluding (at paragraphs [45]-[46]) that clause 18 of the Agreement:
(a) limited the Applicant’s entitlement to a legislative minimum standard; and
(b) was of no effect by operation of s 55 of the Act and clause 2.3 of the Agreement.The Commissioner erred in law by concluding (at PD[45]) that s 65C(2A)(b) did not prevent the making of an order inconsistent with clause 18 of the Agreement.
In support of its application, Opal contends that the effect of the Decision is to compel it to implement a flexible work arrangement contrary to the express terms of the Agreement, in turn exposing it to the risk of contravening a civil penalty provision.
Arguable case with some prospects of success
Regarding whether it has an arguable case with some prospects on appeal, Opal raised several points about its three appeal grounds – all of which are premised upon the Commissioner having erred at law. Mr May has responded to each, rejecting that the Commissioner erred in respect of the three grounds relied upon. I intend to deal with all three appeal grounds together given the interplay between them.
Appeal ground (1) concerns the proper statutory interpretation of ss 65A(3)(d), 65A(4) and 65A(5). Opal submits that the Commissioner erred in law by concluding at paragraphs [42], [44], and [50] that a proposed flexible work arrangement’s inconsistency with an applicable enterprise agreement cannot be a reasonable business ground for refusing a flexible work request.
Opal submitted that three things can be said about the composite phrase ‘reasonable business grounds.’ First, the provision is directed towards ‘business grounds,’ not merely ‘grounds.’ That is, its focus is upon the reasonableness or otherwise of the business justification for a particular decision, not upon the reasonableness (or fairness) of the ultimate outcome. Second, s 65A(5) does not exhaustively define the sorts of circumstances which might constitute reasonable business grounds. Third, in those circumstances, what constitutes a ‘reasonable’ business ground is to be given its ordinary meaning – and on this note, Opal draws upon the meanings given to the word by the Macquarie Dictionary (endowed with a reason) and the Australian Oxford Dictionary (in accordance with reason; not absurd).
Opal further submitted that avoiding exposure to civil penalties in an instant case and avoiding a record of prior convictions which might impact a court’s assessment of penalty in future cases, are each plainly matters that provide a business justification for the decision which is ‘in accordance with reason’, and ‘not absurd.’
Opal observed that the only apparent basis for the Commissioner’s conclusion was the Commissioner’s reliance on the uncontroversial proposition that ‘the entitlement to the NES overrides enterprise agreement terms.’ Opal submits that such reliance assumes that s 65 of the Act provides an entitlement from which the Agreement’s terms derogate.
Mr May, on the other hand, reiterated a submission, which was put to the Commissioner at first instance, namely that the Commission has provided guidance on the interpretation of the term ‘reasonable business grounds.’ That guidance has included that if the employer wishes to refuse flexible working arrangements, they must demonstrate a likely detriment.[16] Additionally, the onus of establishing reasonable grounds is on the employer, and the employer must point to costs or adverse impact over and above the inevitable small adverse impact associated with any material request that is sufficient to outweigh the employee’s personal considerations.
Mr May says that the Commissioner observed at paragraph [48] of her Decision that Opal had no competing interest in granting the request other than its concern that it results in a breach of clause 18. According to Mr May, the Commissioner correctly determined that an alleged inconsistency with the Agreement was not a reasonable business ground.
While Opal pressed that inconsistencies between a flexible work request and an enterprise agreement constitute a reasonable business ground under s 65A(5), Mr May observed that such inconsistencies are better addressed under s 65C(2A) in the context of arbitration.
Addressing first Mr May’s aforementioned contention, s 65A of the Act is concerned with the response of an employer to a request for flexible working arrangements.[17] Section 65A(3)(d) of the Act is directed towards assessing the nature of the employer's reasons for refusing a flexible request. It places a limit on the types of reasons that the employer might rely upon in refusing that request such that the refusal has to be on ‘reasonable business grounds.’ It is observed that there is nothing in the text of s 65A(3)(d) or s 65A(5), which provides a definition of ‘reasonable business grounds.’ The latter provision provides reasons that will constitute reasonable business grounds but qualifies that the subsection does not limit what reasonable business grounds are for the purposes of s 65A(3)(d).
In contrast, s 65C of the Act sets out the requirements in respect of the Commission dealing with a dispute by arbitration.[18] As was stated by the Full Bench in Ridings v Fedex Express Australia Pty Ltd[19] (Fedex), what is readily apparent from the plain reading of the statutory provision is that in arbitrating a dispute under s 65C, the Commission is not compelled to make an order consistent with a finding that it has made in respect of an employer’s refusal of flexible working arrangements. The Full Bench observed that the range of orders available to the Commission along with the requirement ‘to take into account fairness between the employer and the employee’ (s 65C(2)), indicate a broader discretion conferred to the Commission including the weighing of the interests of the employer and employee when arbitrating the dispute.[20] Section 65C(2A) of the Act operates in this context by placing a limit on the Commission's power to make arbitral orders as set out in s 65C(1)(e) and (f).
It is therefore open to conceive of circumstances where each of these, namely ss 65A(3)(d) or 65C(2A) would have independent work to do, and therefore I am unpersuaded by Mr May’s submission in this respect.
Division 4 Part 2-2 of the Act does not provide an entitlement to an arrangement. It provides an entitlement, protected by the general protections provisions, for an employee to request flexible working arrangements and for that request to be agreed to, or not, by the employee’s employer (appreciating the relationship between a refusal and reasonable business grounds).
At first instance and having established that Mr May satisfied the legislative requirements for making an application under s 65 of the Act and that the Commission had power to arbitrate the dispute, the Commissioner considered the relevant legislative provisions. The Commissioner did so within a context where Opal appeared to have argued before her that the Agreement did not provide a mechanism for changing the roster prescribed in clause 18.6 of the Agreement by individual agreement between the employer and the employee.
The Commissioner explained that Opal had submitted that clause 18 of the Agreement required the consensus of those covered by the Agreement, namely the Australian Manufacturing Workers’ Union, the United Workers’ Union, or the employees covered by the Agreement. It relied, particularly, on clauses 18.2 and 18.5 of the Agreement. It held the view that a flexibility agreement with an individual would undermine or override the Agreement with no indemnity against the civil remedy provisions for breaches of industrial instruments arising from s 50 of the Act. Further, it considered that clause 2.3 had no application to clause 18.5 of the Agreement – clause 2.3 sets out a NES precedence clause.
The argument advanced by Opal in its oral submissions before the Commissioner appeared to focus predominantly on the operation of s 65C(2A).[21] Opal commenced its oral submissions identifying that it could not agree to Mr May’s request, because clause 18 of the Agreement did not permit it. It continued that in the context of an arbitration, the Commission was constrained by the same rule under s 65C(2A)(b), and subsequently framed its oral submissions by reference to the question of whether the Commission could make what was sought by Mr May’s request.
In its written submissions, Opal pressed that compliance with its legal obligations under the Agreement was within the ambit of ‘reasonable business grounds.’ Again, it argued that it could not grant the request because to do so would be inconsistent with the Agreement. It further contended that its reasonable business grounds must take their colour from the examples listed in s 65A(5) of the Act.[22] It noted that at the time of making its written submissions the Commission had not considered whether refusing a request on the basis of inconsistency with the underlying Fair Work instrument constituted a reasonable business ground.
Insofar as Opal argued that there was an ‘inconsistency’, it did so in the context of the order sought, noting that the order sought was inconsistent with the terms of the Agreement.[23] It did not concede that there was an inconsistency between the terms of the Agreement and the NES.[24]
Toward the end of Opal’s oral submissions, the Commissioner referred Opal to ss 65(1), 65(1A) and 65(1B). The Commissioner asked counsel for Opal, whether by his submissions he was saying that the words in those legislative provisions were limited by the requirement by Opal to comply with the Agreement, to which counsel for Opal agreed:[25]
MR HYDE: Yes. Yes. So primarily section 65 gives a right of request. Of course, any employee might request many things but whether the request can be granted or not is constrained by two things. One is the legality of doing so, and in that context we're talking about consistency with any enterprise agreement or award that might apply, or I suppose as well an order of the Commission that might already apply.
And the second restriction is reasonable business grounds. The note, of course, is not the legislation. The Acts Interpretation Act would tell you that it's for, you know, supplementary effect. It's not to say that there is an entitlement to a change of hours. Primarily the operative word there is 'request.'[26]
The Commissioner’s consideration as to whether the reasons relied upon by Opal constitute a ‘reasonable business ground’ can be traced through paragraphs [35] to [42] of the Decision.
The Commissioner addressed the proposition advanced by Opal by first considering the operation of a NES and its interaction with an industrial instrument. To this extent, the Commissioner traversed the operation of ss 55(1), 55(4), 55(6), 55(7), 56, 44 and 61. The Commissioner appears to have adopted this approach because she considered, as set out at paragraph [35] of the Decision at first instance, that the dispute concerned a NES.
The Commissioner concluded at paragraph [42] of the Decision that the roster contained in clause 18 of the Agreement, could not be used as authority over the minimum NES. The Commissioner explained that such proposition was inconsistent with an entitlement and further limited Mr May’s entitlement to flexibility based on his parental responsibilities. The Commissioner stated:
The request made under s 65 of the Act seeks a change to hours of work and that change is to clause 18 of the Agreement which restricts the FWA. Consequently, Paper Australia’s submission that Mr May may request a FWA, but the request cannot be granted where the Agreement provides otherwise cannot be construed that an inconsistent term in an industrial instrument is a reasonable business ground, noting however, that more beneficial terms in an instrument cannot be overridden by agreement between Mr May and Paper Australia.[27]
In respect to grounds (1), (2) and (3), I am not persuaded that Opal has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.
If I have correctly interpreted what is being said at paragraphs [42], [44] and [50] of the Decision, then the Commissioner has not elevated what has been expressed in respect of a purported inconsistency between flexible working arrangements (or the making of the same) and the Agreement, into a principle or decision rule (insofar as it is relevant) so as to disallow automatically that an inconsistency between proposed flexible work arrangements and an applicable enterprise agreement cannot constitute a reasonable business ground for refusing a flexible work request.
To the extent that the Opal argues that the Commissioner’s conclusion was not confined to the particular flexible work arrangement or the particular enterprise agreement in issue, that proposition cannot stand. The Commissioner’s reasons at paragraph [42] relate solely to the issue of whether the business grounds relied upon by Opal constituted reasonable business grounds, in the context of the particular terms of the Agreement and the particular request made by Mr May. The Commissioner’s reasons were therefore confined to such parameters. To thereafter suggest that the Commissioner expressed her reasons at a level of principle, is to simply misconstrue paragraph [42].
Paragraphs [44] and [50] of the Decision at first instance set out the Commissioner’s consideration of s 65C of the Act. At paragraph [44], the Commissioner simply reiterates her conclusion that an inconsistency with an enterprise agreement is not a reasonable business ground, and at paragraph [50] the Commissioner again restates the point. Paragraphs [44] and [50] are predicated upon the reasoning of the Commissioner at paragraphs [35] to [42] and, again, are to be understood within that context. Once more, it is not the case that the Commissioner has espoused either a principle or, to the extent that it is relevant, a decision rule.
In respect to the first ground, Opal proceeds on the basis that it has correctly construed the operation of clause 18 of the Agreement. That is, Mr May’s request for flexible working arrangements would require Opal, if it were to consent to the request, to act contrary to clause 18 of the Agreement.
Second, Opal proceeds on the basis that it has correctly construed the operation of clause 2.3 of the Agreement in light of clause 18 of the Agreement.
Third, Opal proceeds on the basis that a ‘reasonable business ground’ in the context described at first instance, extends to circumstances where there is an alleged inconsistency between the flexible working arrangements requested and the terms of the Agreement. This is notwithstanding that, at first instance, it submitted that ‘reasonable business grounds’ must be of the same kind, or take their colour from, the grounds listed in s 65A(5).
Starting with Opal’s construction of the term ‘reasonable business ground’, when one considers the reasonable business grounds listed in s 65A(5) and whilst appreciative that those grounds are not exhaustive, the words “reasonable’ and ‘business’ in the term ‘reasonable business grounds’ have work to do. Opal pressed that avoiding exposure to civil penalties in an instant case and avoiding a record of prior contraventions which might impact a Court’s assessment of penalties in future cases, are plainly matters that provide a ‘business’ justification. Based on the material filed, I am not persuaded that there is an arguable case with some prospects of success that the Act contemplates the word ‘business’, in this sense, to extend to the speculative avoidance of exposure to civil penalties. Opal submitted that ‘reasonable business grounds’ must be of the same kind as the grounds listed in s 65A(5) and yet the business ground relied upon by Opal, does not appear equivalent to the tangible impacts upon business so described in s 65A(5), where, for example, the arrangement is shown to be too costly, cannot be accommodated, is impractical, or the impact of the arrangement is likely to result in some form of detriment to the business.
Further, Opal has premised its ‘reasonable business ground’ on a construction of the Agreement and the Act that negates it changing the Roster or spread of hours of work by agreement with an individual employee. Whilst the Agreement provides for such changes by agreement by the parties or that an employee may elect, with the consent of Opal, to work make up time (takes time off ordinary hours and works those hours at a later time), it does not appear implicit that such provisions negate the operation of clause 2.3 of the Agreement or otherwise preclude Opal from entering flexible working arrangements with the Applicant
At ground (2), Opal contends that the Commissioner erred in law in concluding (at paragraphs [45]-[46]) that clause 18 of the Agreement limited the Applicant’s entitlement to a legislative minimum standard and was of no effect by operation of s 55 of the Act and clause 2.3 of the Agreement.
Again, If I have correctly interpreted what is being said at paragraphs [45] and [46] of the Decision, it is not that the Commissioner implicitly assumed that the entitlement prescribed by s 65 of the Act, was an entitlement to a particular flexible working arrangement (or outcome). At paragraph [45], the Commissioner identified that the effect of clause 18, if applied literally to reject the request, limited Mr May’s entitlement to the legislative entitlement. The Commissioner was emphasising the relationship between a minimum employment standard and the terms of the Agreement. Section 65 of the Act enshrines a right for an employee to request a flexible work arrangement and a right to have that request refused only by the employer on reasonable business grounds. That is, s 65 provides Mr May with an entitlement to request a change to the Roster that is open to be agreed to by Opal. This contrasts to circumstances where the Agreement is purported, by Opal, to only allow change to a Roster by agreement of the parties or for Mr May to work ‘make up time’. The Commissioner emphasised that the NES provides a minimum entitlement that could not be overridden (or excluded) by the terms of the Agreement, a proposition that appears sound.
Ground (3) asserts that the Commissioner erred in law by concluding (at paragraph [45] of the Decision) that s 65C(2A)(b) did not prevent the making of an order inconsistent with clause 18 of the Agreement. However, at paragraph [45] of the Decision, the Commissioner stated that the ‘Commission must not make an order that is inconsistent with the Act and the terms of an industrial instrument.’
Regarding the consideration of the public interest, Opal contends that many employers covered by enterprise agreements receive flexible work requests and one can envisage inconsistencies arising between those requests and the terms of an applicable enterprise agreement. However, as I have outlined above, the Decision is limited to the consideration of the facts and circumstances arising in the case presented to the Commissioner, with no general principle having been expressed or broader application apparent.
Balance of convenience
In circumstances where I am not satisfied that the appeal grounds give rise to sufficient prospects of success on appeal to justify the granting of a stay, it is unnecessary for me to deal with the question of balance of convenience in detail. However, if my reasoning regarding prospects is incorrect, then it remains that I would not grant the stay sought as a matter of discretion having regard to the balance of convenience considerations raised.
Opal presses that the circumstances of the case lead to the balance of convenience weighing in favour of a stay. It refers to three reasons for making the contention.
First, it refers to the risk of prejudice to itself should the stay not issue – that is, it contends it would be forced to choose between complying with the order of the Commission (and therefore contravening a terms of the Agreement and therefore the Act), or else comply with the Agreement (and in doing so contravene an order of the Commission and thus s 675 of the Act).
In my opinion, there is no ‘real’ risk of prejudice to Opal in this respect that would justify a stay. That Opal would be forced to choose between complying with the order of the Commission and therefore risk contravening the terms of the Agreement, is premised upon Opal’s own construction of clause 18 of the Agreement, its construction of clause 18 and clause 2.3 of the Agreement, its understanding of the interaction between the Agreement and the NES, and the meaning it has attributed to the term ‘reasonable business grounds’. It is not necessarily the case that Opal’s construction is correct, to the extent that, as currently framed, I do not consider it has an arguable case with some prospects on appeal. Further, having considered the submissions of Mr May at paragraphs [20] to [23], I am not persuaded that Opal has established a risk of prejudice arising from what one might consider a plausible contravention of the Agreement that could lead to civil penalties.
Second, Opal relies upon the unlikelihood of material prejudice to Mr May. The company submits that Mr May has used the make-up time mechanism under clause 22.7 of the incorporated Award to obtain the substance of his requested flexibility since the refusal of his flexible work request – an arrangement that will continue. Further, Opal cited willingness to provide undertakings to ensure no financial detriment to Mr May pending the determination of the appeal: indeed, it submitted it was prepared to provide, for that period, exactly what Mr May asked for in his meeting with Opal on 20 September 2024 (ie. an ex gratia payment to cover any periodic shortfall in make-up time hours that may arise from time to time). However, while Mr May may not be prejudiced should the stay be granted, similarly it is not apparent that there would be a tangible detriment to Opal given the undertaking it was prepared to provide.
Finally, Opal pressed that even if there were prejudice to Mr May, the duration of any such prejudice would be limited. The timeframe in question is not so extraordinary as to weigh the balance of convenience in Opal's favour or that of Mr May.
In my view, there is no prejudice to Opal if a stay is not granted and, on balance, the factors considered weigh against the granting of a stay.
Conclusion
For these reasons, the application for a stay is refused.
DEPUTY PRESIDENT
Appearances:
A Pollock of Counsel for the Applicant
A Bonello for the Respondent
Hearing details:
2025.
Perth (by video using Microsoft Teams)
1 May.
[1] May v Paper Australia Pty Ltd[2025] FWC 799.
[2] PR785391.
[3] Exhibit A1 - Email sent on 25 July 2024 titled ‘Maintenance dayworker update’, [AM-1].
[4] AE524579.
[5] May v Paper Australia Pty Ltd[2025] FWC 799 [42].
[6] Ibid [48].
[7] Ibid.
[8] Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 785 [5].
[9] Ibid; See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409, 413 [13].
[10] Fair Work Act 2009 (Cth) s 44.
[11] Ibid s 55(1).
[12] Ibid s 55(3).
[13] Ibid s 55(4)(a).
[14] Ibid s 55(4)(b).
[15] Ibid s 56.
[16] Ridings v Fedex Express Australia Pty Ltd [2024] FWC 1845 [65].
[17] Ridings v Fedex Express Australia Pty Ltd [2024] FWCFB 473 [29].
[18] Ibid [33].
[19] [2024] FWCFB 473 [34].
[20] Ibid.
[21] Transcript of Proceedings, May v Paper Australia, (Fair Work Commission, C2024/7074, Yilmaz C – 20 December 2024) [PN147] (Transcript).
[22] Citing VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1, 9 [19].
[23] Transcript (n 21) [PN133].
[24] Ibid [PN128]–[PN131].
[25] Ibid [PN169].
[26] Ibid [PN169]–[PN170].
[27] May v Paper Australia Pty Ltd[2025] FWC 799 [42].
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