FBIS International Protective Services (Aust) Pty Ltd v Fair Work Commission [2014] FCA 1390

FBIS International Protective Services (Aust) Pty Ltd v Fair Work Commission [2014] FCA 1390

The stay was granted because the applicant raised an important and serious, fairly arguable construction issue under s 120(1)(b)(i) of the Fair Work Act 2009 (Cth), and the discretionary balance favoured a stay: the applicant faced a real prospect of practical difficulty recovering substantial redundancy payments if it ultimately succeeded, while the employees appeared to be in other employment and no substantial detriment from deferral of any s 119 entitlements was shown, particularly given the proceeding could be heard promptly by a Full Court.

Jurisdiction
Australia
Judgment Date
27 November 2014
Procedural Posture
Application for Judicial Review Seeking Mandamus and Certiorari in Relation to a Fair Work Commission Full Bench Decision / Interlocutory Application for Stay Pending Hearing and Determination of the Proceeding
Outcome
Stay granted.
Legal Topics
['redundancy Pay' 'other Acceptable Employment' 'stay of Statutory Tribunal Order' 'judicial Review' 'mandamus and Certiorari' 'construction of S 120(1)(b)(i) of the Fair Work Act 2009 (cth)']
['fair Work' 'administrative Law'] ['redundancy Pay' 'other Acceptable Employment' 'stay of Statutory Tribunal Order' 'judicial Review' 'mandamus and Certiorari' 'construction of S 120(1)(b)(i) of the Fair Work Act 2009 (cth)']

Case Brief

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Procedural Posture

Application for Judicial Review Seeking Mandamus and Certiorari in Relation to a Fair Work Commission Full Bench Decision / Interlocutory Application for Stay Pending Hearing and Determination of the Proceeding

Legal Issues

  1. 1 ['Whether the operation of the Fair Work Commission Full Bench order made on 21 October 2014 in C2014/4854 should be stayed pending the hearing and determination of the judicial review proceeding.' 'Whether the applicant raised an important and serious, fairly arguable point concerning the Full Bench\'s construction of the word "obtains" in s 120(1)(b)(i) of the Fair Work Act 2009 (Cth).' 'Whether discretionary factors, including recovery difficulties for redundancy payments and apparent absence of detriment to employees, favoured granting a stay.']

Ratio Decidendi

The stay was granted because the applicant raised an important and serious, fairly arguable construction issue under s 120(1)(b)(i) of the Fair Work Act 2009 (Cth), and the discretionary balance favoured a stay: the applicant faced a real prospect of practical difficulty recovering substantial redundancy payments if it ultimately succeeded, while the employees appeared to be in other employment and no substantial detriment from deferral of any s 119 entitlements was shown, particularly given the proceeding could be heard promptly by a Full Court.

Court Disposition

Stay granted.

Orders

  • ['The operation of the order of the Full Bench of the First Respondent made on 21 October 2014 in C2014/4854 be stayed pending the hearing and determination of this proceeding or further order.' 'The application be listed for hearing before a Full Court in Melbourne on a date to be fixed during the Full Court and...