Western Australian Industrial Relations Commission

Application for Stay of Operation of a Commission Order

An application for a stay is made to suspend the operation of an order of the Commission which requires a party to take some course of action within a certain period of time. For example, as a party to the original application you may have been ordered to pay a sum of money by a certain date and you are appealing against that order.

An order granting a stay may be made by the presiding Commissioner (either the Chief Commissioner or the Senior Commissioner) under s 49(11) of the Industrial Relations Act 1979, which provides that any time after an appeal to the Full Bench has been instituted, a person who has a sufficient interest may apply to the Commission for an order that the operation of the decision appealed against be stayed wholly, or in part, pending the hearing and determination of the appeal (refer also to reg 102(6) of the Industrial Relations Commission Regulations 2005).

Section 49(12) of the Industrial Relations Act 1979 provides that an application under s 49(11) shall be heard and determined by the presiding Commissioner.

An application for a stay needs to be made separately to the appeal and is commenced by filing a Form 1 - General Application. The stay application will be issued with a different application number to the appeal.

The grounds in support of the application must be included in the Form 1. You will need to be able to satisfy the presiding Commissioner that it is appropriate to grant the stay. This is because ordinarily a successful party is entitled to enjoy the fruits of their litigation (i.e. the benefit of the order at first instance).

The grounds in support of an application for a stay should refer to the following:

  • the reason for seeking the stay;
  • the consequences of the stay not being granted (e.g. will the appeal be made nugatory (lacking in utility) if the stay is not granted?);
  • anything else which affects the balance of convenience if the stay is not granted (i.e. which party will be inconvenienced more if the stay is not granted);
  • whether the appeal has a reasonable prospect of success; and
  • if there are any other special circumstances that support the granting of the stay.

Once filed, the application will be forwarded to the presiding Commissioner's Chambers to be endorsed with procedural directions which are issued to the Registrar of the Commission.

The directions will ordinarily include the date and time by which the Registrar is to serve the application on the parties and a hearing date. The directions may also include a requirement to swear an affidavit setting out the facts which support the application.

The granting of a stay is a discretionary decision and depends upon the application of principles which have been discussed in a number of cases (see John Holland Group Pty Ltd v CFMEU (2005) 85 WAIG 3918 at [32]-[38], Seacode Nominees Pty Ltd v Nigel Anthony Penfold (2005) 85 WAIG 3926 at [6]-[8], [12]-[17] and The St Cecilia's College School Board v Carmelina Grigson (2006) 86 WAIG 1260). These principles will be considered by the presiding Commissioner in deciding, in each case, whether a stay should or should not be granted.

Stay of Order of Industrial Magistrate

An order or judgement of an Industrial Magistrate is automatically suspended (stayed) if an appeal is filed, until such time as the appeal has been heard and determined (see reg 42 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005). Therefore, there is no need to apply for a stay in this situation.






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Western Australian Industrial Relations Commission
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