WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES JOHN HOLLAND GROUP PTY LTD

APPLICANT

-v-

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

RESPONDENT

CORAM THE HONOURABLE M T RITTER, ACTING PRESIDENT

HEARD FRIDAY, 4 NOVEMBER 2005

DELIVERED MONDAY, 7 NOVEMBER 2005

FILE NO. PRES 6 OF 2005, PRES 7 OF 2005

CITATION NO. 2005 WAIRC 02983

CatchWords Industrial Law (WA) – Applications to stay operation of interim order – Jurisdiction of Commission – Finding – Public interest – Whether an appeal is instituted – Stay of order principles – Consequences granting/not granting stay orders - Industrial Relations Act 1979 (as amended), s7, s35(3), s44, s44(6), s44(6)(ba), s49, s49(2), s49(2a), s49(3), s49(11) – Industrial Relations Commission Regulations 2005, regulation 102, regulation 102(1)

Decision Applications for a stay - Dismissed

Appearances

Applicant Mr J Long (of Counsel), by leave, and with him Ms A Casellas (of Counsel), by leave

Respondent Ms K Scoble (of Counsel), by leave

Reasons for Decision

THE ACTING PRESIDENT:

THE APPLICATIONS

1         The Commission has before it two applications, PRES 6 of 2005 and PRES 7 of 2005, both seeking an order that the operation of orders made by the Commission, by a single Commissioner, on 14 and 19 October 2005 respectively, be stayed pending the hearing and determination of appeals which have been filed against the orders made.

2         In support of the applications, the Commission has received into evidence two affidavits, both sworn by Mr Jonathan Adam Griffiths Long on 2 November 2005.  These were tendered by the applicant.  The Commission has also received into evidence an affidavit sworn by Mr Ricky Kavanagh on 2 November 2005.  This was tendered by the respondent in opposition to the orders sought.

BACKGROUND

3         The background to the making of the orders by the Commission, which are appealed against, is as follows.  On 10 October 2005, the applicant gave notice to Mr Kavanagh, of the termination of his employment, by the applicant.  Mr Kavanagh is a member of the respondent union.  The termination of employment was to take effect on 25 October 2005.

4         On 11 October 2005, the respondent filed a notice of application seeking a conference pursuant to s44 of the Industrial Relations Act 1979 (as amended) (“the Act”).  The grounds on which the application was made is set out in a schedule to the application.  The schedule, in summary, referred to the dispute which existed at the Country Traveler’s Association Project site over the termination of employment of Mr Kavanagh, who was an occupational health and safety delegate on that project.

5         Subsequent to the application being made, the Commission convened a conciliation conference pursuant to s44 of the Act on 11 October 2005.  At the conference, the respondent sought an interim order that Mr Kavanagh be reinstated to his position pending the further conciliation of the application.  Conciliation conferences took place on 11 and 12 October 2005.

6         By letter from the Commission to Clayton Utz, the solicitors for the applicant, dated 12 October 2005, the Commission indicated that it was minded to issue an order which would include the suspension of the operation of Mr Kavanagh’s termination notice while conciliation attempted to resolve the matter.  The letter then stated that, before making such an order, the Commission would like to hear from the applicant’s counsel and the respondent in reply before a decision was reached.  The letter said that another conference was listed for 13 October 2005.  This conference proceeded.

7         On 14 October 2005, the Commission sent a letter to the parties which enclosed a minute of orders.  The letter stated that:-

“If you consider that the Minute of Order is not accurate and you wish to speak to the Minutes, you should make your submission to the Commission, in writing, by 4:30pm on Friday, 14 October 2005 indicating what change is required to be made to the Minute.”

8         The letter stated that, if no correspondence was received from the parties by the time specified, the order would issue in the form of the minute.

9         The applicant, by its solicitors, attempted to make written submissions about the contents of the minute.  The applicant’s solicitors drafted two letters dated 14 October 2005 and sent them by facsimile to the Commission.  It appears that the facsimile number to which at least one of the letters was sent was not the facsimile number of the chambers of the Commissioner who was dealing with the application, but the general facsimile number of the Commission.  It also appears that, accordingly, the contents of this letter were not brought to the attention of the Commissioner prior to 4.30pm on 14 October 2005.  As a result, the Commissioner made orders in terms of the minute of orders.  The letter which the Commissioner had not at that stage received made submissions about the contents of the minute.

10      The order dated 14 October 2005 has a lengthy preamble which set out the background to the making of the orders by the Commission.  The operative parts of the order are as follows:-

“1. That the notice of termination given to Mr Kavanagh on 10 October 2005 be suspended as from the date of this order.

2. That the suspension of the notice of termination remain until further order or until conciliation has resolved the union’s claim that the notice of termination issued to Mr Kavanagh is, in all of the circumstances, unfair.

3. That if there is any need to arbitrate this application, this order will remain until such time as the matter is heard and determined.

4. That further conciliation proceedings be reconvened by the Commission, commencing as soon as practicable, on the following basis –

(a) That the parties be represented at a senior level.

(b) That the discussions are private and without prejudice and not be used for any purpose other than conciliation before the Commission.

(c) That any documentation tabled or prepared for the purposes of conciliation be limited to those conciliation proceedings only.

(d) That the purpose of conciliation is to discuss issues relevant to the dispute including the following matters –

(i) The circumstances relating to the issuance of a series of disciplinary letters to Mr Kavanagh by the employer;

(i) The role and duties of the CFMEU occupational safety and health representative on the CTA site having regard to the provisions of the Occupational Safety and Health Act 1984;

(ii) Communications between John Holland Pty Ltd and the CFMEU with respect to the CTA site; and

(iii) Communications between John Holland Pty Ltd, its employees and the site personnel.

5. That a copy of this order be posted on the site noticeboard.

6. That either party have liberty to apply to amend this order upon the giving of 48 hours’ notice to the Commission and to the other party.”

11      It is noted that in order 2, the suspension of the notice of termination was to remain until further order or until conciliation had resolved the union’s claim that there was no valid reason for the termination of employment.  Also, order 6 stated that both parties had liberty to apply to amend the order upon the giving of the requisite notice.

12      On 17 October 2005, the Commissioner became aware of the letter sent by facsimile by Clayton Utz on 14 October 2005.  The Commissioner then convened a hearing on 18 October 2005, purportedly as a speaking to the minute.  The transcript of the hearing which took place on 18 October 2005 is before the Commission in support of the stay applications.  At the commencement of the hearing, the Commissioner said that she wanted to ascertain whether the minute distributed to the parties on 14 October 2005 accurately reflected the Commission’s reasons for decision as contained therein.  The Commissioner indicated that she had received correspondence from both parties.  When asked to make submissions, the applicant’s counsel said that they were not seeking to speak to the minute, but submitted that the Commission was functus officio in relation to the order made and, as there had been no opportunity to speak to the minute, it was now not open to the Commission to hear the applicant speak to the minute at that time because the order had been finalised and issued.

13      Following discussion between counsel and the Commissioner, the Commissioner asked whether the applicant wanted any changes made to the order.  The applicant’s counsel said the applicant’s submission was that they could not seek any changes to the order by virtue of speaking to the minute.  Upon inquiry by the Commissioner, counsel indicated that they did not wish to make any further submissions.

14      On 19 October 2005, the Commission made the second order against which an appeal has been filed.  The terms of the orders made by the Commission on that date were identical to those made by the Commission on 14 October 2005.  The preamble to the orders was different, however, in that as well as setting out the background up to 14 October 2005, it set out the events which had taken place in relation to the issuing of the order on 14 October 2005.  Relevantly, the preamble to the order said that:-

“AND WHEREAS the Commission issued a Minute of Order on the morning of Friday 14 October 2005 requesting the parties respond in writing by 4.30pm that day if they required a Speaking to the Minutes.  Unknown to the Commission the Registry received two communications from the employer; an additional submission for the Commission to consider and a request for a Speaking to the Minutes;

AND WHEREAS unlike other correspondence which had been sent to my chambers by direct facsimile, the correspondence was forwarded by the employer to the Commission’s general facsimile number and as a result did not reach me by 4.30pm;

AND WHEREAS the Commission proceeded to issue an order as if no request for a Speaking to the Minutes had been received and as if s 35(3) of the Act had been complied with;

AND WHEREAS upon receipt of the facsimile from the employer on Monday 17 October 2005 the Commission convened a Speaking to the Minutes attended by the parties.  The union submitted that the order was issued in accordance with the Act, the order contained a liberty to apply clause in the event amendments were considered necessary and the employer had waived their rights by forwarding the correspondence to an inappropriate facsimile number;

AND WHEREAS with respect to the union’s submission the Commission disagrees with their assertion that the order was issued in accordance with the Act.  The Commission considers the stronger argument to be that the Minute of Order that purportedly issued as an order is a mere waste of paper because it had issued without s 35(3) of the Act being complied with.

AND WHEREAS the employer submitted that the Commission was functus officio with respect to the order and therefore no further change could be made.  For similar reasons to those given in response to the union’s submissions I disagree.  It is accurate to say an order, once perfected, cannot be corrected and there is no “slip rule” in the Act or at common law.  In this regard the Commission adopts the views of the Full Bench in Aussie Online Ltd v. Lane (2001) 81 WAIG 2511.  An order issued contrary to the Act, in this case contrary to s 35(3), cannot be considered to be a “perfected order” as defined by the Full Bench;

AND WHEREAS the application concerns an active industrial matter that remains before the Commission and the interim order that purportedly issued on Friday 14 October, 2005 was interim in nature and once perfected, does not conclude the matter;

AND WHEREAS having considered the written submissions as forwarded by the employer on Friday 15 October 2005 and received in my chambers on Monday 17 October 2005 together with the submissions of the parties at the Speaking to the Minutes, the Commission proposes to issue the interim order pursuant to s 44(6)(ba)(i), (ii) and (iii) of the Act.”

15      The orders made were then set out.

16      On 21 October 2005, the applicant filed an appeal against both orders made by the Commission on 14 and 19 October 2005 respectively, being FBA 16 and FBA 17 of 2005.  The applications for a stay of the orders were filed on 25 October 2005.

GROUNDS OF APPEAL

17      The grounds of appeal to the Full Bench in respect of the orders made by the Commission on 14 October 2005 are set out in an attachment to the Notice of Appeal and are as follows:-

“1. The Commission erred in law by failing to provide the Applicant with an opportunity to speak to the minutes of the proposed Order as required by Section 35(3) of the Industrial Relations Act (WA) 1979 (“the Act”).

2. The Commission erred in law in denying the Appellant natural justice by declining to inform the Appellant of the matters or information upon which the Commission was relying when it informed the Appellant in writing on 12 October 2005 that the Commission was minded to issue an interim order which would include the suspension of the termination notice issued by the Appellant to the Respondent’s member.

3. The Commission erred in law by requiring the Appellant to satisfy the Commission that an interim order should not be made rather than by requiring the Respondent to satisfy the Commission that an interim order could and should be made.

4. The Commissioner erred in holding that a relevant consideration under section 35(3) of the Act was whether the Appellant had requested a speaking to the minutes whereas the relevant consideration is whether the Appellant had waived its rights to speak to the minutes (which it had not).

5. The Commission erred in law in that the Order is contrary to the purpose of Section 44(6) of the Act requiring, in the circumstances of this matter, any interim order to have the effect of enabling conciliation or arbitration to resolve the matter in question.

6. The Commission erred in law by issuing an Order the terms of which are uncertain.

PARTICULARS

(a) Paragraph 3 requires the Order to remain in force until such time as the matter is heard and determined whereas paragraph 2 provides that the suspension of the termination notice remains in force until further order or until conciliation has resolved the Respondent’s claim;

(b) Paragraph 4(d)(i) requires the parties to discuss the role and duties of the CFMEU Occupational Health and Safety Representative having regarding to the provisions of the Occupational Safety and Health Act 1984 which is inconsistent with, and irrelevant to, the requirement under Section 44(6) of the Act that any orders made, in the circumstances of this matter, must have the effect of enabling conciliation or arbitration; and

(c) the scope of paragraph 4(c) is so uncertain in its terms as to be incapable of application.

7. The Commission erred in making the Order which by its terms denies the occurrence of the event of which the Respondent complained.”

18      The grounds of appeal against the orders made by the Commission on 19 October 2005 are contained in an attachment to the Notice of Appeal and are as follows:-

“1. The Commission erred in law in failing to give the parties any opportunity to be heard before making the Order.

2. The Commission erred in law in denying the Appellant natural justice by declining to inform the Appellant of the matters or information upon which the Commission was relying when it informed the Appellant in writing on 12 October 2005 that the Commission was minded to issue an interim order which would include the suspension of the termination notice issued by the Appellant to the Respondent’s member.

3. The Commission erred in law by requiring the Appellant to satisfy the Commission that an interim order should not be made rather than by requiring the Respondent to satisfy the Commission that an interim order could and should be made.

4. The Commissioner erred in holding that a relevant consideration under section 35(3) of the Industrial Relations Act (WA) 1979 (“the Act”) was whether the Appellant had requested a speaking to the minutes whereas the relevant consideration is whether the Appellant had waived its rights to speak to the minutes (which it had not).

5. The Commission erred in law by failing to provide the Appellant with an opportunity to speak to the minutes of the proposed Order as required by Section 35(3) of the Act.

6. The Commission erred in law in that the Order is contrary to the purpose of Section 44(6) of the Act requiring, in the circumstances of this matter, any interim order to have the effect of enabling conciliation or arbitration to resolve the matter in question.

7. The Commission erred in law by issuing an Order the terms of which are uncertain.

PARTICULARS

(a) Paragraph 3 requires the Order to remain in force until such time as the matter is heard and determined whereas paragraph 2 provides that the suspension of the termination notice remains in force until further order or until conciliation has resolved the Respondent’s claim;

(b) Paragraph 4(d)(i) requires the parties to discuss the role and duties of the CFMEU Occupational Health and Safety Representative having regarding to the provisions of the Occupational Safety and Health Act 1984 which is inconsistent with, and irrelevant to, the requirement under Section 44(6) of the Act that any orders made, in the circumstances of this matter, must have the effect of enabling conciliation or arbitration; and

(c) the scope of paragraph 4(c) is so uncertain in its terms as to be incapable of application.

8. The Commission erred in law in treating the Order of 14 October 2005 as a nullity without it being duly set aside.

9. The Commission erred in making the Order which by its terms denies the occurrence of the event of which the Respondent complained.”

THE STAY APPLICATIONS

19      The applications were heard together on 4 November 2005.  Prior to that hearing both parties filed written submissions.  Oral submissions were made at the hearing and both parties made brief post hearing written submissions which were received on 4 November 2005.  I have considered these submissions in determining the applications.

JURISDICTION

20      There is an issue as to whether the Commission has the jurisdiction to entertain these applications at the present time.  This arises because of the contents of s49(2a) and s49(11) of the Act and because, as at present, the Full Bench has not determined that the matters, the subject of the appeals, are of such importance that, in the public interest, an appeal should lie against the orders made.

21      It is accepted by the applicant that the appeals made are appeals from a “finding”, as that term is defined in s7 of the Act.  S49 distinguishes between a “finding” and a “decision”.  Both of these terms are defined in s7.

22      In Burswood Resort (Management) Ltd v ALHMWU  83 WAIG 3079, Sharkey P said at 3081:-

“However, an appeal can only be instituted validly under s.49(2) or (2a) if it “lies”, (ie) if a right of appeal exists under the section.  As I have already observed, no right of appeal exists against a finding until the Full Bench has reached the opinion required by s.49(2a).  Until then, the appeal purported to be instituted is not validly instituted and cannot be validly instituted.  If the appeal is not validly instituted, there is no institution of an appeal under s49 and thus no jurisdiction in the President under s49(11) because there is no appeal instituted as a condition precedent to the subsequent valid application for a “stay” order.”

23      The respondent relies on the Burswood Resort decision and submits that the Commission presently has no jurisdiction to hear the stay applications made.  The applicant respectfully submits that the Burswood Resort decision is incorrect and ought to be departed from by the Commission as presently constituted.

24      To determine the jurisdictional issue, it is necessary to consider the terms of s49 of the Act.  S49 is as follows:-

“49. Appeals to Full Bench from decision of Commission under this Act

(1) In this section “the Commission” means the Commission constituted by a Commissioner, but does not include the Commission exercising jurisdiction under section 80ZE.

(2) Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.

(2a) An appeal does not lie under this section from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.

(2b) An appeal does not lie under this section from a determination —

(a) of a relevant industrial authority —

(i) under section 97VP; or

(ii) in an arbitration under any EEA dispute provision of the kind referred to in section 97UP;

or

(b) of the Commission under section 97XC or 97XQ.

(3) An appeal under this section shall be instituted within 21 days of the date of the decision against which the appeal is brought and may be instituted by — 

(a) any party to the proceedings wherein the decision was made; or

(b) any person who was an intervener in those proceedings.

(4) An appeal under this section — 

(a) shall be heard and determined on the evidence and matters raised in the proceedings before the Commission; and

(b) shall, if brought by a person referred to in subsection (3)(b), be dismissed unless, on the hearing of the appeal, that person obtains leave of the Full Bench,

and, for the purpose of paragraph (a), “proceedings” includes any proceedings arising under section 35(3).

(5) In the exercise of its jurisdiction under this section the Full Bench may, by order — 

(a) dismiss the appeal;

(b) uphold the appeal and quash the decision or, subject to subsection (6), vary it in such manner as the Full Bench considers appropriate; or

(c) suspend the operation of the decision and remit the case to the Commission for further hearing and determination.

(6) Where the Full Bench varies a decision under subsection (5)(b) the decision as so varied shall be in terms which could have been awarded by the Commission that gave the decision.

(6a) The Full Bench is not to remit a case to the Commission under subsection (5)(c) unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.

(7) The decision of the Full Bench shall be signed and delivered by the President.

(8) When the members of the Full Bench are divided on a question, the question shall be decided according to the decision of a majority of the members unless the members are evenly divided on the question in which case the question shall be decided according to the decision of the President.

(9) When any question of law arises in any proceedings before the Full Bench, the President may state a case for the decision of the Court thereon and shall do so if a majority of the members of the Full Bench so request.

(10) Subsections (7), (8), and (9) apply to and in relation to all proceedings before the Full Bench whether under this section or otherwise.

(11) At any time after an appeal to the Full Bench has been instituted under this section 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.

(12) An application under subsection (11) shall be heard and determined by the President.”

25      As appears from s49(11) of the Act, an application for an order that the operation of a decision appealed against be stayed can be made at any time after an appeal has been “instituted”.  The jurisdictional issue turns upon whether, at present, the appeals have or have not been instituted.  The effect of the Burswood Resort decision is that an appeal has not been instituted against a finding until the Full Bench forms the opinion referred to in s49(2a) of the Act.

26      S49 of the Act does not, in its terms, specify when an appeal has been instituted.  S49(2) refers to an appeal lying in the manner prescribed.  Regulation 102 of the Industrial Relations Commission Regulations 2005 (“the Regulations”) refers to appeals to the Full Bench.  In regulation 102(1), it provides that an appeal to the Full Bench from a decision of the Commission may be commenced by filing a Notice of Appeal in the form of Form 9.  The same form is to be used for an appeal against a finding and an appeal against a decision of the Commission.

27      Form 9 of the Regulations is a Notice of Appeal to the Full Bench.  In its terms, it is to be addressed to the respondent(s) to the appeal and provides notice that the appellant(s), “has this day instituted an appeal against the decision of the Commission”.  This suggests that the filing of the Notice of Appeal “institutes” an appeal.  Although the terms of the Regulations and the forms scheduled thereto, cannot derogate from the meaning of the Act, the Regulations including Form 9 contain support for the view that an appeal is instituted against both a decision and a finding of the Commission by the filing of a Notice of Appeal.

28      The meaning of the various subsections of s49 of the Act are not necessarily of easy reconciliation.  They seem to refer to two concepts; one being whether an appeal lies and another being the institution of an appeal.  The institution of an appeal is referred to in s49(3).  This provides a time limit for instituting an appeal of 21 days from the date of the decision against which the appeal is brought.  The subsection also states who may institute the appeal.  The meaning of “instituted” in s49(3) and s49(11) must, in my opinion, mean the same thing.  In my view, the preferable construction of the meaning of the term “instituted” in s49 is that an appeal is instituted when filed.  This view is enhanced by the following, in my opinion.

29      If s49(2a) of the Act were to have the effect that an appeal was not instituted until the Full Bench formed the opinion contained in s49(2a), it would mean that an appeal, to be instituted within the time limit allowed by s49(3), would need to be filed, served and heard by the Full Bench who then formed the opinion referred to in s49(2a).  In my view, this is not what s49(3) contemplates.  Additionally, all of these things would need to take place before an appellant would be entitled to seek a stay of the operation of the decision appealed against under s49(11).  This would, in my view, be an unnecessarily cumbersome process.  The purpose of an application for a stay is to obtain relatively expeditious and interim relief against the consequences of orders made by the Commission at first instance.  This purpose would potentially be frustrated by a cumbersome process such as that which would take place if an application to, and determination by, the Full Bench would need to be made under s49(2a) before an application for a stay could be made to the President under s49(11) of the Act.

30      Accordingly, and with great respect, I differ from the view taken by Sharkey P in the Burswood Resort case.  Accordingly, in my view, there is jurisdiction in the Commission to hear and determine the applications for a stay which have been made.

STAY OF ORDERS - PRINCIPLES

31      The terms of s49(11) of the Act have been set out above.  It refers to an application being made by a person who has a sufficient interest.  The present applicant clearly has such an interest.

32      S49(11) of the Act does not, in itself, set out the criteria which govern the basis upon which a decision should be made as to whether a stay should be granted.  The power to order a stay pending an appeal, however, is common amongst Australian civil jurisdictions.  I think that it is appropriate to exercise the discretion contained in s49(11) in a way similar to other such jurisdictions.

33      As the legislation contemplates, an appeal does not, of itself, stay the operation of the decision appealed against.  The party in whose favour a decision and order have been made is usually entitled to enjoy the benefit of those orders.  Ordinarily, something special or unusual is required before a stay will be granted.

34      In Federal Commissioner of Taxation v Myer Emporium Limited (No 1) [1986] 160 CLR 220, Dawson J at 222 said that the discretion to “order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal….  Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory….  Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering monies paid pursuant to the judgment at first instance.  However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it would not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed”.

35      These observations were cited with approval by Pullin J in Commonwealth Bank v Bouwman [2003] WASC 205 and by Anderson J, with whom Pidgeon J agreed, in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 at pages 89-90.  In the latter case, Anderson J said:-

“… unless a stay is necessary to preserve the subject matter or integrity of the litigation in the broader sense described above the circumstances will not be regarded as sufficiently exceptional to enliven the discretionary jurisdiction to provide a stay.  Only if the applicant can show that a stay is necessary to that end will the High Court go on to consider matters such as whether the application for special leave has a prospect of success, whether a stay will occasion hardship to the respondent, where the balance of convenience lies and so on.  I think such matters are always treated as secondary to the question whether a stay is necessary to preserve the subject matter or integrity of the litigation.  They come into play only if it appears that the refusal of a stay will substantially deprive the applicant of the benefit to be derived from the appeal.  Thus, an applicant may fail to obtain a stay even if the applicant can show that unless there is a stay the appeal would be futile.”

36      The reasons of Anderson J were cited with approval by Sharkey P in G & M Partacini t/as Bayswater Powder Coaters v SDAE (2005) 85 WAIG 51.  In that decision, Sharkey P emphasised that the jurisdiction to grant a stay should also be exercised having regard to the requirements of s26 of the Act and the “need to prevent there being any more uncertainty than is necessary, in industrial matters”.

37      In Eastland Technology Australia Pty Ltd and Others v Whisson and Others (2003) 28 WAR 308, the court (Murray and Parker JJ) at 311 distilled generally applicable principles in relation to applications for stays of orders.  These principles were set out as follows:-

“• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.

• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.

• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.

• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.

• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.

• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.”

38      Accordingly, in my opinion, the primary focus is upon the consequences of a stay being granted or not granted.  Where, for example, the absence of a stay would render the appeal nugatory or futile, special circumstances warranting the grant of a stay may exist.  It will also be necessary to consider matters such as the arguability of the appeal and the balance of convenience.  The parties, in their submissions, emphasised that the Commission should consider whether there is a serious question to be tried and where the balance of convenience would lie.  In considering the latter consideration, the circumstances of the respondent or any other affected party, such as Mr Kavanagh, can be important.

CONSIDERATION OF THE APPLICATIONS

39      Mr Long for the applicant submitted that the concept of the “fruits of the litigation” often spoken about in applications for stays, had less significance in these matters.  This was because the proceedings before the Commission had not gone beyond interim hearings at which no evidence had been heard.  The Commission had not made any final determination, for example, that Mr Kavanagh had been unfairly dismissed.  I think this submission by Mr Long has limited relevance in that, prima facie, the respondent and Mr Kavanagh are entitled to the benefit of the orders made by the Commission unless there is good reason to make the stay orders sought.

40      In my opinion, the key issue in determining these applications is the consequences of the granting or not granting of the stay orders sought.  If the stays are granted, then the operation of the orders made by the Commission on 19 October 2005 are suspended.  The centrepiece of these orders was the order that the notice of termination given to Mr Kavanagh be suspended.  If the operation of that order is stayed, then the notice of termination given to Mr Kavanagh will take its course.  The notice of termination, as set out earlier, was due to take effect on 25 October 2005.  That date has now passed.  Accordingly and as accepted by Mr Long, if the stays are granted in these applications, the notice of termination of Mr Kavanagh will have taken effect and his employment with the applicant would have ceased.

41      If the stay orders sought are not made, then the operation of the orders made by the Commission at first instance continue, unless and until altered, and Mr Kavanagh remains in employment with the applicant.

42      Accordingly, this is not a situation where, if a stay is ordered, the subject matter of the dispute will be preserved for the purposes of determination on appeal.  On the contrary, if the stays are granted, the purpose of the appeals may be rendered nugatory in the sense that the appellants will no longer need to seek to overturn the orders made by the Commission at first instance to achieve the termination of employment of Mr Kavanagh.  This will already have occurred.  Accordingly, in my opinion, it is appropriate to preserve the status quo so that the termination notice against Mr Kavanagh remains suspended, at least until further order by the Commissioner.

43      In coming to this view, I have taken into account the broad powers which the Commission possesses at a conciliation conference convened under s44 of the Act.  In making the orders, the Commission indicated that it was acting pursuant to s44(6)(ba) of the Act.  This section is in the following terms:-

“(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may — 

……

(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission — 

(i)  prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter;

(ii) enable conciliation or arbitration to resolve the matter in question; or

(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question;”

44      It is to be noted that the Commissioner who has been seized of this dispute and convened conferences pursuant to s44 of the Act, has made the orders which have been made on the basis of the Commission’s assessment of the matters referred to in s44(6)(ba).  The Commissioner, at least at this stage, is best placed to judge the type of matters which are relevant to the making of the orders which have been made.

45      In the lengthy preamble to the orders made by the Commission on 19 October 2005, it was noted by the Commission that:-

(a)                 The Commission had formed the view that it was just and correct for an interim order to issue in all of the circumstances and that the issuance of the interim order will promote and enhance the conciliation process in the resolution of the claim;

(b)                The Commission is of the opinion that the issuance of an interim order in this matter will prevent the deterioration of industrial relations on site to allow conciliation and/or arbitration to resolve the matter; and

(c)                 The Commission is of the opinion that conciliation is not exhausted and the existence of an interim order will enable and promote further conciliation in accordance with the objects of the Act.

46      In my opinion, I should be slow to ignore such matters being taken into account by the Commission at first instance and grant the stay applications sought with the consequences set out above.

47      Mr Long submitted that, by the terms of the orders made, the Commission had effectively given the respondents the relief sought on behalf of Mr Kavanagh and that the orders made did not leave anything to be conciliated.  I do not agree with this submission.  This is in part because the orders made by the Commission were interim or interlocutory orders, not final orders.  The Commission reserved, by the terms of the orders it made, the possibility of changing or amending the orders.  If, for example, the respondent or Mr Kavanagh refused to participate meaningfully in any conciliations, the Commission could change its previous interim orders.

48      In my view, it is necessary to consider the grounds of appeal against the two orders made, for the purposes of considering whether there is a serious issue to be tried.  I share, however, the observations of O’Dea P in Robe River Iron Associates v AMWSU (1988) 68 WAIG 1709 where the President at page 1710 said:-

“It is obviously not an appropriate function in an Application of this kind, to decide whether there is a strong case or a fairly strong case.  I do not attempt to set out the precise nature of this task but certainly it is to exclude the possibility that there is in fact no issue of substance to be raised – that is what is raised is not a mere triviality.  I think there is some difficulty involved in searching too closely the substance and import of the grounds raised in an Appeal at this stage because a Tribunal is bound to avoid reaching any conclusions which might, in a sense, pre-empt the view taken when he constitutes part of the appeal board ultimately.”

49      In the two stay applications, the applicant has included a statement as to the reasons why a stay should be granted.  Included in these statements are the reasons why the applicant submits that there is a serious question to be tried with respect to each appeal.  These reasons are as follows in respect of the 14 October 2005 order:-

“1. Whether the Order is invalid on the basis that the Commission failed to afford the Appellant an opportunity to speak to the minutes of the proposed Order as contemplated by s.35(3) of the Act.

2. Whether the Order was made ultra vires or was otherwise invalid on any or all of the following grounds:

(a) the effect of the Order is to prevent the matter in question from being resolved by conciliation or arbitration contrary to s.44(6)(ba) of the Act; and

(b) the Order is uncertain in its terms.

3. Whether the defects apparent in the Commission’s procedure had the effect of denying the Appellant natural justice and thereby rendering the Order invalid.

PARTICULARS OF PROCEDURAL FAILURE AND DENIAL OF NATURAL JUSTICE

(a) Declining to inform the Appellant of the matters or information upon which the Commission was relying when it informed the Appellant in writing on 12 October 2005 that the Commission was minded to issue an interim order including the suspension of the termination notice issued by the Appellant to the Respondent’s member.

(b) Requiring the Appellant to establish why an interim order should not be made instead of requiring the Respondent to establish why an interim order could and should be made.

4. Whether the Commission erred in making the Order which by its terms denies the occurrence of the event of which the Respondent complained.”

50      For the 19 October 2005 order, the application for a stay sets out the following reasons why there is a serious issue to be tried:-

“1. Whether the Order is invalid on the basis that the Commission failed to provide the parties with any opportunity to be heard before making the Order.

2. Whether the Order is invalid on the basis that the Commission failed to afford the Appellant an opportunity to speak to the minutes of the proposed Order as contemplated by s.35(3) of the Act.

3. Whether the Commission erred in law in treating the Order of 14 October 2005 as a nullity without it being duly set aside.

4. Whether the Order was made ultra vires or was otherwise invalid on any or all of the following grounds:

(a) the effect of the Order is to prevent the matter in question from being resolved by conciliation or arbitration contrary to s.44(6)(ba) of the Act; and

(b) the Order is uncertain in its terms.

5. Whether the defects apparent in the Commission’s procedure had the effect of denying the Appellant natural justice and thereby rendering the Order invalid.

PARTICULARS OF PROCEDURAL FAILURE AND DENIAL OF NATURAL JUSTICE

(a) Declining to inform the Appellant of the matters or information upon which the Commission was relying when it informed the Appellant in writing on 12 October 2005 that the Commission was minded to issue an interim order including the suspension of the termination notice issued by the Appellant to the Respondent’s member.

(b) Requiring the Appellant to establish why an interim order should not be made instead of requiring the Respondent to establish why an interim order could and should be made.

6. Whether the Commission erred in making the Order which by its terms denies the occurrence of the event of which the Respondent complained.”

51      These points were elaborated upon in the applicant’s written and oral submissions.

52      In my view, at least some of the grounds of appeal are arguable and, in that sense, there is a serious issue to be tried.  In making this observation, I am not necessarily suggesting that the grounds are of equal strength or merit.  There is, in my opinion, however, a serious issue to be tried in the appeals, for the purpose of determining these applications.

53      The applicant has also made submissions about the balance of convenience.  The applicant primarily refers to the fact that, in the absence of a stay, they will be financially prejudiced because they are compelled to pay out monies to Mr Kavanagh by way of remuneration and other employment benefits, notwithstanding the fact that the orders made may be found by the Full Bench to be invalid.  I accept that this is an inconvenience and possible detriment faced by the applicant.  In my view, neither this nor the arguability of the appeals outweigh the considerations referred to above which support the dismissal of the stay applications.

54      The applications also point to the fact that, if a stay is granted, Mr Kavanagh may still proceed to an arbitration of a claim for unfair dismissal where orders for reinstatement and compensation, amongst others, may be made.  Again, I accept this to be the case but it does not outweigh the considerations referred to earlier.  The applicant also refers to the “wrong message” being given to other employees when Mr Kavanagh, at least temporarily, continues his employment despite being given notice of termination on grounds of serious misconduct.  Reference is made by the applicant to Cadbury Schweppes Limited v Peluso, AIRC, 30 April 1998, Print Q0507.  In all the circumstances, I do not believe that this consideration can be given much weight.  This is because I do not believe I can make assumptions about what messages may be sent to other employees by the applicant complying with the orders made by the Commission at first instance.

55      On the balance of convenience issue, the respondent refers to the fact that, if Mr Kavanagh is terminated, he will at least temporarily be out of employment and will be financially disadvantaged as a result.  I have taken this into account in determining the applications.  There is also reference to the fact that Mr Kavanagh was the occupational health and safety representative of the respondent on site and that there are ongoing health and safety issues.  This is a matter that I do not, at this stage, place much weight upon, given the paucity of the evidence before the Commission, as presently constituted on this subject.

CONCLUSIONS

56      As stated earlier I think the primary issue in determining these applications is the consequences of a stay being granted or not granted.  If stays are granted then the interim orders of the Commissioner at first instance will be suspended and Mr Kavanagh’s termination of employment will have taken effect.  This will largely undermine the integrity of the orders made by the Commissioner, prior to any Full Bench determining that the Commissioner had erred, and that the orders should be set aside.  In these applications, I do not think it appropriate to order stays which will have this affect.

57      In all of the circumstances, in my view, there are insufficient grounds to support the Commission making orders to stay the operation of the orders made on 14 and 19 October 2005.  Accordingly, the applications for stays will be dismissed.