Stay orders for Fair Work Commission appeals

Once an appeal is launched in the Fair Work Commission, it has the power to issue “stay” orders to preserve the status quo pending the hearing of the appeal, which ordinarily takes some months toe heard. These are the principles which are applied when determining whether such an order should be made.

“There was no dispute between the parties as to the principles applicable to the determination of the stay application. They are as stated in Kellow-Falkiner Motors Pty Ltd v Edghill, 2 in which the Full Bench approved the following statement of principle:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

Grant Johnson Pty Ltd ATF The Grant Johnson Trust T/A Platinum Roof Coating v Petrie [2016] FWC 9190 delivered23 December 2016 per Catanzariti VP