A STAY OF THE OPERATION OF THE ORDER IN MATTER NUMBER B 32/2023 WHICH IS THE SUBJECT OF FBA 14/2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00279

DELIVERED : FRIDAY, 7 June 2024

FILE NO. : PRES 6 OF 2024

Applicant

AND

Alain Trabelsi

Respondent

Catchwords : Industrial Law (WA) - Appeal filed - Application to stay operation of order filed - s 49(11) - Application granted by consent

Legislation : Industrial Relations Act 1979 (WA) s 49, s 49(11)

Result : Application granted

Representation:

Applicant : Mr B Hughes

Respondent : In person

Case(s) referred to in reasons:

GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00190; (2021) 101 WAIG 569

Reasons for Decision

1         The applicant seeks an order that the decision of the Commission made on 11 April 2024 in application B 32 of 2023 be stayed pending the hearing and determination of appeal FBA 14 of 2024. The order of the Commission, the subject of the stay application, declared that the respondent had been denied a benefit under his contract of employment and that he was entitled to receive the sum of $10,000, as a payment for the April to June 2022 quarter, under a bonus arrangement. The applicant was ordered to pay the respondent the sum of $10,000 with the balance of the applicant’s claim of $7,692.30 for the July to September 2022 quarter, being dismissed.

2         In appeal FBA 14 of 2024, a number of appeal grounds are advanced, which, for the reasons to follow, are unnecessary for me to recite for the purposes of this application. However, in broad terms they assert that the applicant was denied procedural fairness; that the Commissioner at first instance failed to have regard to relevant evidence and took into account irrelevant evidence; and that the Commissioner was biased against the applicant.

3         Following the filing of the appeal, the applicant commenced this application under s 49(11) of the Industrial Relations Act 1979 (WA) to stay the operation of the decision appealed against. Whilst the stay application does not articulate any reasons as to why the order at first instance should be stayed, a subsequent statutory declaration from Mr Hughes deposed to various matters, broadly aligned to the grounds of appeal.

4         At the hearing of the stay application before me on 17 May 2024, I raised with the parties whether there may be some prospect of an agreement being reached between the parties that the monies ordered to be paid to the respondent, be paid into a trust account, pending the hearing and determination of the appeal.  The application was adjourned for a period of time to enable the parties to consider the matter further.  As a result of that conferral, agreement has been reached that the sum of $10,000 will be paid into a trust account operated by solicitors Steinepries Paganin, pending the hearing and determination of the appeal. This will be done by no later than the close of business on 14 June 2024.

5         Accordingly, whilst it is unnecessary, in light of the parties’ agreement, to consider the relevant principles in relation to stay applications as discussed by me in GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00190; (2021) 101 WAIRG 569, I am satisfied that in this matter, the following are established.  First, that an appeal to the Full Bench has been properly instituted by the applicant under s 49 of the Act. Second, that the applicant is a person with a sufficient interest under s 49(11) of the Act, to make an application for a stay of the Commission’s order.  Third, given the agreement of the parties, an order and declaration should be made.

6         Accordingly, I will now make an order and declaration that order 2 of the Commission’s order made on 11 April 2024 in application B 32 of 2023 be and is hereby stayed, pending the hearing and determination of this appeal or until further order.  And that the sum of $10,000 be paid by the applicant into a trust account operated by Steinepries Paganin solicitors, on the terms and conditions as specified in the order, pending the hearing and determination of the appeal, by no later than the close of business on 14 June 2024.