Royal Bay International Pty Ltd v Pedro Vannea

[2014] FWC 7270

[2014] FWC 7270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decisions

Royal Bay International Pty Ltd
v
Pedro Vannea
(C2014/1823)

DEPUTY PRESIDENT SMITH MELBOURNE, 16 OCTOBER 2014

Appeal against decision [[2014] FWC 6416] of Senior Deputy President O’Callaghan at Adelaide on 18 September 2014 in matter number U2014/6909.

[1] This is an application by Royal Bay International Pty Ltd (Royal Bay) to stay a decision of Senior Deputy President O’Callaghan. 1 Section 606(1) of the Fair Work Act 2009 provides that:

“If, under section 604 and 605, FWC hears an appeal from, or conducts a review of, a decision, FWC may (except as provided in subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that FWC considers appropriate, until a decision in relation to the appeal or review is made or FWC makes a further order.”

[2] Before a stay order is granted the Commission is required to be satisfied that an arguable case exists with a reasonable prospect of success and that the balance of convenience favours the granting of a stay. The conventional test for granting a stay order was considered by Vice President Ross (as he then was) in Kellow-Faulkner Motors Pty Ltd v Edge Hill. 2  That approach was subsequently confirmed by a Full Bench.3

[3] At the conclusion of the hearing I announced:

“I thank counsel for their submissions. I am not going to generally grant the stay. I am not satisfied on the material before me that an arguable case exists with a reasonable prospect of success in relation to the appeal or leave in the appeal. However, as a consequence of declining to grant the stay I am conscious of the submission put by the applicant for the stay that an order should be made requiring the appellant to repay the monies in the event that the appeal is successful. I do not propose to make such an order but I will stay that part of the Senior Deputy President’s decision that requires the back payment from the date of decision.

The parties should now, as a matter of urgency, resolve the matters that are raised in the 18 September letter sent by Mr Roberts to the General Manger of Royal Bay International Pty Ltd.” 4

[4] I now turn to my reasons.

[5] In the application for a stay the main contention was that His Honour, the Senior Deputy President, mistook the employer in the sense that the applicant in the proceedings before His Honour was employed by his own company.

[6] This was the matter at issue in the proceedings as to whether or not Mr Vannea was an independent contractor or, in truth, an employee of Royal Bay. In his decision His Honour found:

“I have concluded that Mr Vannea was an employee of Royal Bay who was paid, by arrangements established by Royal Bay, through a company. He was not provided with paid leave and was paid only when he worked. He worked on a regular basis such that he was a regular casual employee.” 5

[7] In opposing the stay, it was argued that:

● The Senior Deputy President had turned his mind to the relevant decisions and the various indicia which went to an assessment of whether or not a person was an employee or a contractor.

● There was no identification of any significant error of fact as required by s.400(2) of the Act. This was particularly so against finding by the Senior Deputy President that the evidence of persons from Royal Bay were not credible or impressive.

[8] In addition, it was argued that Royal Bay had not complied with the Order of the Senior Deputy President to reinstate Mr Vannea and this to the detriment of Royal Bay 6 if the balance of convenience is considered. Further, the decision in Blackadder v Ramsay Butchering Services Pty Ltd7 was authority for the proposition that returning to work after a reinstatement order was made was important in the context of non-pecuniary benefits.

[9] It was on this basis that I was satisfied that the conventional test for granting a stay had not been met in the context of the reinstatement order. I then turned to consider the form of the order. In this connection I considered the problem of recovering the money which would be paid to Mr Vannea if he was given all the back pay that was awarded by the Senior Deputy President. I considered that it was appropriate to take consequential action from refusing the stay generally to stay that part of the decision requiring back payment to be made to Mr Vannea. The terms of the order would cover the requirement to pay into an interest bearing account that amount of money which would have been earned in accordance with the Poultry Processing Award 2010 [MA000074]. This was to be controlled by Royal Bay’s legal advisors and the monies would be paid directly to Mr Vannea in the event that the appeal failed.

[10] It was for these reasons that I refused the stay but made a consequential order.

DEPUTY PRESIDENT

Appearances:

R. Manuel of Counsel for the appellant.

H. Borenstein QC on behalf of the respondent.

Hearing details:

2014.

Melbourne:

October, 8.

 1   [2014] FWC 6416.

 2   Print S2639.

 3   Print S4216.

 4   Transcript, PN85 and 86.

 5   [2014] FWC 6416 at paragraph 28.

 6 See Technical and Further Education Commission (No 1) [2014] FCA 727 per Perram J.

 7 (2005) 139 IR 338.

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