Dec 285/00 M Print S4216


Workplace Relations Act 1996
s.45 appeal against decision Print S2639
issued by Vice President Ross on 24 January 2000

Kellow-Falkiner Motors Pty Ltd
(C No. 30691 of 2000)

s.170CE application for relief in respect of termination of employment

P Edghill


Kellow-Falkiner Motors Pty Ltd
(U No. 31912 of 2000)







Appeal - stay application - exercise of discretion.


[1] On 20 December, 1999 Commissioner Blair made two orders binding on Kellow-Falkiner Motors Pty Ltd (Kellow-Falkiner). The first order required Kellow-Falkiner to pay compensation to Mr P Edghill (the respondent) in lieu of reinstatement. The compensation was assessed at "nine weeks' pay, at a rate of $596 gross per week, less the appropriate tax". The second order required Kellow-Falkiner to pay the respondent's costs and established a procedure for assessment of those costs. Kellow-Falkiner lodged an appeal pursuant to s.45 against the orders and sought a stay of their operation pursuant to s.45(4) pending the determination of the appeal. The application for a stay of operation was heard by Vice President Ross and rejected by him in a decision given on 24 January, 2000.

[2] Kellow-Falkiner lodged an appeal against the Vice President's decision on 8 February, 2000. That appeal was listed for hearing before this Full Bench on 14 February, 2000. Mr Shellard, who is a director of Kellow-Falkiner and appeared for it, sought an adjournment. The adjournment was sought primarily on the basis of late notice of the hearing and the company's inability to attend on that day. The file shows that the notice of hearing was received by Kellow-Falkiner by facsimile on Thursday 10 February, 2000 at 4:34 p.m. After further submissions the parties agreed that the appeal against Vice President Ross' decision should be dealt with by written submissions and it was therefore unnecessary to rule on the adjournment application.

[3] A decision pursuant to s.45(4) of the Workplace Relations Act 1996 (the Act) is a procedural one which deals with the position which should obtain during the period leading

up to the determination of the appeal. The decision is not merely procedural, however, because it does affect rights and obligations in a direct way.

[4] In this case the Vice President set out the principles which he intended to apply in the following passage:

We agree with this approach. Kellow-Falkiner's written submissions do not suggest that the Vice President applied a wrong principle or made an error of law in the manner in which he approached the case.

[5] In relation to the Commissioner's first order, Kellow-Falkiner submitted to Vice President Ross that it had been denied natural justice because the case was heard in its absence and also submitted that the Commissioner had made a serious error in not requiring two particular witnesses to attend and give evidence. The Vice President found that neither of these points was sufficiently arguable and dismissed the application for a stay of operation of the first order. In relation to the Commissioner's second order, Kellow-Falkiner submitted to the Vice President that it had not been given notice of the respondent's application for costs and that the Commissioner's order must therefore be set aside on appeal. The Vice President found that there was a sufficiently arguable case on this ground but nevertheless found that the balance of convenience did not favour a stay of operation of the second order, the costs order.

[6] We have carefully considered Kellow-Falkiner's written submissions and Vice President Ross' decision. We are not persuaded that we should interfere with the Vice President's decision in any way. It would serve no useful purpose to go through the manner in which he dealt with Kellow-Falkiner's submissions because the decision is clear and comprehensive. He dealt with each of the arguments raised by Kellow-Falkiner and decided that on balance it was not appropriate to stay the operation of Commissioner Blair's orders. We are satisfied that the discretion conferred by s.45(4) was exercised properly.

[7] We decline to grant leave to appeal.



P Shellard for Kellow-Falkiner Motors Pty Ltd
S Caylock for the applicant

Hearing date:
February, 14.

Printed by authority of the Commonwealth Government Printer

<Price code B>

1 See generally McAdam v Swersky and Velos, Print P3937, 12 August 1997 per Williams SDP; Franklin and Porcheron v Gainot and Zamos Pty Ltd t/as White Ibis Partnership, Print P7985, 12 January 1998 per Munro J.

2 Independent Schools Staff Association ACT v Comalco Aluminium Ltd, Print K0963, 10 December 1991 per Moore DP, Williams DP and Palmer C.