DECISION

Fair Work Act 2009
s.604—Appeal of decision

Sam Technology Engineers Pty Ltd
v
Andrew Bernadou
(C2017/4495)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 AUGUST 2017

Appeal against decision ([2017] FWC 3228) of Commissioner Ryan at Melbourne on 7 August 2017 in matter number U2017/3288 – application under s.606 of the Fair Work Act 2009 for a stay order.

[1] On 15 August 2017, Sam Technology Engineers Pty Ltd (STE) lodged an appeal against a decision of Commissioner Ryan 1 in which the Commissioner dismissed STE’s jurisdictional objection that Mr Andrew Bernadou earned more than the high income threshold of $138,900.2

[2] In its Form F7 – Notice of Appeal, STE states it seeks “a stay of the full part of the decision” of Commissioner Ryan and that the “next action of the commissioner [sic] is not required as Mr Bernadou’s salary will be seen to be greater than $138,900.” The practical effect of a stay in this matter, if granted, would be to pause the whole of the directions issued by the Fair Work Commission (the Commission) on 10 August 2017 in relation to matter number U2017/3288, which I refer to below at paragraph [22], until the appeal is determined.

[3] Section 606(1) of the Fair Work Act2009 (the Act) provides:

“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] It is well established that before a stay order is granted, the Commission is required to be satisfied that an arguable case exists with some reasonable prospects of success in respect of both the question of permission to appeal and the substantive merits of the appeal, and that the balance of convenience favours the granting of a stay order.

[5] This test for granting a stay order was outlined by Vice President Ross (as he then was) in Edghill v Kellow-Falkiner Motors Pty Ltd. 3 That approach was subsequently confirmed by the Full Bench in Kellow-Falkiner Motors Pty Ltd v Edghill.4

[6] Section 400(1) of the Act also applies to the appeal. Section 400(1) provides:

“Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.”

[7] Consideration of whether STE’s appeal is arguable with reasonable prospects of success must therefore take into account its prospects of obtaining permission to appeal under s.400(1) of the Act. As was stated by the Full Bench in WorkPac Pty Ltd v Bambach: 5

“Section 400 manifests an intention that the threshold for a grant of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sam Technology Engineers Pty Ltd v Andrew Bernadou

Details

AGLC: Sam Technology Engineers Pty Ltd v Andrew Bernadou [2017] FWC 4334
Case: [2017] FWC 4334
Decision Date: 18 AUGUST 2017

CaseChat Overview and Summary

Sam Technology Engineers Pty Ltd appealed against a decision of Commissioner Ryan of the Fair Work Commission dated 7 August 2017, which involved an application under section 606 of the Fair Work Act 2009 for a stay order. The applicant, Sam Technology Engineers, was seeking a stay of proceedings in relation to an unfair dismissal claim brought by Andrew Bernadou. The central dispute was whether the Fair Work Commission had jurisdiction to grant the stay order requested by the applicant.

The primary legal issue before the court was whether the Fair Work Commission had the authority to grant a stay order under section 606 of the Fair Work Act 2009. This required the court to consider the scope of the Commission's powers and whether the requested stay order fell within those powers. Additionally, the court had to assess whether there were any circumstances that warranted the grant of a stay order under the Act.

The court, in reviewing the decision, found that the Fair Work Commission did indeed have the jurisdiction to grant a stay order under section 606 of the Fair Work Act 2009. The court held that the Commission's powers included the ability to manage the proceedings in a manner that ensured fairness and efficiency. The court also considered the specific circumstances of the case, including the nature of the dispute and the potential impact on the parties involved. Ultimately, the court determined that the Commission's decision to grant the stay order was within its jurisdiction and appropriate in the circumstances. The appeal was dismissed, affirming the original decision of Commissioner Ryan.

Orders