Western Australian Industrial Relations Commission

Stay granted for operation of order


The Commission has issued a stay of operation of a decision of the Commission pending the hearing and determination of 2 appeals against the decision.

The Commission at first instance had determined that The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Shop Award) covers the retail pharmacy industry.

The Pharmacy Guild of Western Australia Organisation of Employers (the Guild) and Chemist Warehouse Perth applied for the decision to be stayed because they said the errors identified in the Notice of Appeal were strongly arguable. The employers had believed, in good faith, that the Award did not apply and had not applied it in the past.  They said they would be prejudiced by having to immediately back pay current and former employees, review staffing levels and possibly reduce opening times causing permanent change which may be unnecessary if the appeal is successful.

The Shop, Distributive and Allied Employees’ Association of Western Australia (the SDA) replied that the grounds of the appeal lack merit and the balance of convenience does not favour granting the stay order.

Chief Commissioner Scott noted that a stay order may only be granted under special circumstances where in the absence of a stay it would result in the appeal being rendered useless. In these instances, it is necessary to consider the strength of any argument for appeal along with the balance of convenience.

The Chief Commissioner noted that although the SDA and Minister for Commerce and Industrial Relations indicated that they do not intend to take enforcement action, individual employees could still seek to enforce the Award. The Chief Commissioner said that the applicants are bound to apply the Award and any decision not to take enforcement action did not alter their legal obligations.

The Chief Commissioner considered that, should the order not be stayed, the applicants would face significant structural, financial and staffing consequences such as being required to audit, reconsider and recalculate the rates of pay for present and former employees, and, reassess their operating hours, rosters and staffing generally. These consequences carry implications which, if the appeals are granted, would result in substantial disruption and waste that could not be completely restored.

The Chief Commissioner determined that the consequences, should the order not be stayed, amount to special circumstances and demonstrate that the balance of convenience lies with granting the stay.

The Chief Commissioner considered the grounds of appeal brought by the applicants. The grounds of appeal related to;

  • the proper application of authorities,
  • the application and provisions of the Industrial Relations Act 1979 and the effect of the 2002 amendments to the Act, and
  • a failure to address a relevant submission relating to an amendment to the schedule of respondents, which may affect the outcome.

The Chief Commissioner determined that these grounds of appeal were arguable.

The application was upheld and stay order granted.

The decision can be read here.

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