FEDERAL COURT OF AUSTRALIA FBIS International Protective Services (Aust) Pty Ltd v Fair Work Commission [2014] FCA 1390 Citation: FBIS International Protective Services (Aust) Pty Ltd v Fair Work Commission [2014] FCA 1390 Parties: FBIS INTERNATIONAL PROTECTIVE SERVICES (AUST) PTY LTD (ACN 083 083 774) v FAIR WORK COMMISSION and MARITIME UNION OF AUSTRALIA File number: VID 691 of 2014 Judge: JESSUP J Date of judgment: 27 November 2014 Legislation: Fair Work Act 2009 (Cth) ss 119, 120 Date of hearing: 27 November 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicant: Mr J B Davis Solicitor for the Applicant: HWL Ebsworth Counsel for the first Respondent: The first respondent filed a submitting appearance Counsel for the second Respondent: Mr A Howell Solicitor for the second Respondent: Maritime Union of Australia IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 691 of 2014 BETWEEN: FBIS INTERNATIONAL PROTECTIVE SERVICES (AUST) PTY LTD (ACN 083 083 774) Applicant AND: FAIR WORK COMMISSION First Respondent MARITIME UNION OF AUSTRALIA Second Respondent JUDGE: JESSUP J DATE OF ORDER: 27 NOVEMBER 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. 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. 2. The application be listed for hearing before a Full Court in Melbourne on a date to be fixed during the Full Court and Appellate Sitting period 9 February 2015 to 6 March 2015. 3. The hearing be listed for an estimate of 1 day. 4. In accordance with Practice Note APP2, not later than 4:00 pm 20 business days before the hearing of the application, the applicant must file and serve on Second Respondent its outline of submissions. 5. In accordance with Practice Note APP2, not later than 4:00 pm 15 business days before the hearing of the appeal, the Second Respondent must file and serve on the applicant its outline of submissions together with a list of materials it requires to be included in Part C of the Application Book. 6. In accordance with Practice Note APP2, not later than 4:00 pm 10 business days before the hearing of the application, the applicant must file and serve on the First Respondent any submissions in reply. 7. In accordance with Practice Note APP2, not later than 4:00 pm 5 business days before the hearing of the appeal, the applicant must: (a) file four copies; and (b) serve on First Respondent a copy, of Part C of the Application Book. 8. Outlines of submissions not exceed 10 pages in length, including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis. 9. Each party file and serve a list of authorities and legislation in accordance with Practice Note CM 2. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 691 of 2014 BETWEEN: FBIS INTERNATIONAL PROTECTIVE SERVICES (AUST) PTY LTD (ACN 083 083 774) Applicant AND: FAIR WORK COMMISSION First Respondent MARITIME UNION OF AUSTRALIA Second Respondent JUDGE: JESSUP J DATE: 27 NOVEMBER 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant in this proceeding, FBIS International Protective Services (Aust) Pty Ltd, seeks mandamus and certiorari in relation to a decision of a Full Bench of the first respondent, the Fair Work Commission, by which it upheld an appeal from an earlier order made by a Commissioner under s 120 of the Fair Work Act 2009 (Cth) ("the Act"). The issue before the Commission was whether the applicant had obtained other acceptable employment for employees whom it had made redundant in consequence of the loss of a contract. Entitlements to redundancy pay arose under s 119 of the Act, but the Commission was empowered to reduce the amount payable under s 119 if it was satisfied of a number of things, including that the employer had obtained other acceptable employment for the employee. 2 According to the applicant's case, the substantial basis upon which the second respondent, the Maritime Union of Australia ("the union"), succeeded in its appeal to the Full Bench of the Commission was the view which the Commission took as to the meaning of the word "obtains" in s 120(1)(b)(i) of the Act. The applicant says that that view was wrong as a matter of law, in consequence of which the Full Bench addressed and answered the wrong question, and made itself amenable to mandamus and certiorari. 3 The question which I must decide today is whether the employees whose entitlements under s 119 were revived upon the setting aside of the order made by the original Commissioner should have those entitlements, in effect, stayed pending the hearing and determination of the present proceeding for judicial review. It is not the operation of s 119 as such, which would be stayed, of course. It would be the operation of the Full Bench's order setting aside the original order made by the Commissioner. 4 I am satisfied that the question which the applicant raises in this proceeding is an important and serious one, and that the applicant has a fairly arguable point with respect to the construction which the Full Bench applied to s 120(1)(b)(i) of the Act. I do not think, in the circumstances, that it would be either wise or appropriate for me to go further and to express a view about the strength of that case, but it is a case of sufficient apparent substance to justify moving to the next stage of the present application, which is to consider whether, as a matter of discretion, the stay which the applicant seeks should be granted. 5 My attention has been drawn to a number of authorities which stand for the proposition that a stay of an order made by a statutory tribunal which is challenged on jurisdictional grounds should be ordered only in exceptional circumstances. On the other hand, my attention has also been drawn to the expression of a judicial opinion that the reference to exceptional circumstances in this context should not be understood as requiring that the circumstances identified be rare or unusual. 6 The circumstances which I would regard as exceptional, and which tend to favour the grant of a stay in the present case, are the following. 7 There appear to be some 49 employees who have been made redundant by the applicant, and whose prima facie entitlements under s 119 were affected by the original order made by the Commissioner and revived by the order made on appeal by the Full Bench. They did not appeal against the original Commissioner's decision. The appeal was mounted by the union, of which I am told eight of the employees are members. A consequence of the fact that none of the employees made himself or herself a party to the appeal within the Commission was that it was only the appellant in the Commission, the union, which has been made a party to the present application. The union now seeks to maintain the benefit of the order of the Full Bench, but is unable to make any submission, or to provide any representation, on behalf of the individual employees. This has practical consequences which must be taken into account in the exercise of my discretion. 8 The applicant says, as appears to be the case, that all 49 employees did secure other employment and, on the latest information available, are still in that employment. None of the employees have taken steps to make it known to the Court that he or she is not still in such employment, and the union is not in any position to make such a submission. Neither is it in a position to give any undertaking or assurance on behalf of any of the 49 employees who would benefit from payments under s 119 if the Court should refuse the stay which is now applied for. 9 In these circumstances, the applicant makes the submission that, if it was obliged to make those payments and ultimately succeeded on this application, it would face very substantial practical difficulties in recovering the amounts which it had paid. The total sum involved is substantial and, although the amount payable to each employee probably should not be so regarded, I recognise that, from the perspective of the individual, the amount would be regarded as significant. The reality is that there would be nothing to stop the employees dissipating the amounts they received under s 119. Technically speaking, those amounts might be recoverable, but it would not take much imagination to perceive the practical issues that might confront the applicant in attempting to recover them. 10 The other side of the ledger, of course, is that, because these employees appear to be in employment, and because no submission is made on their behalf otherwise, I am disposed to take the view that they would suffer no substantial detriment from the grant of a stay. It is true that, on an application such as the present one, the union does not need to establish that the grant of a stay would be detrimental. It takes the position that the employees are entitled to have s 119 operate according to its terms. Nonetheless, we have, on one side of the ledger, the applicant with a case which is arguable and confronting a fairly obvious prospect of difficulties in the recovery of money which it might pay if a stay were not granted, and, on the other side, no apparent detriment, disadvantage or injustice if a stay were granted and such entitlements as the employees presumptively have under s 119 being deferred for a period of months pending the disposition of the case in the Court. 11 That brings me to the final factor which I take into account, the ability of the Court to deal with this proceeding. As I informed counsel, the Court is in a position to have this dealt with before a Full Court in the February sittings, that is, in the period between 9 February and 6 March 2015. Making the usual assumptions about the delivery of judgments, I am disposed to think that the balance of justice would best be served if the Full Bench orders were stayed, with the result that such entitlements as the employees have under s 119 would be deferred for the period necessary for the hearing and determination of the case before a Full Court. 12 I have not mentioned the union's argument that the employees would have entitlements under the enterprise agreement and that the applicant would, in any event, be required to make payments under that agreement even if it were successful in restoring the order made by the original Commissioner. Although I have been referred to the terms of the enterprise agreement, quite what they amount to in the circumstances of this case is, it seems to me, attended by some uncertainty, largely because it would appear not to be uncontroversial whether an exclusion which has some correspondence with that for which s 120(1)(b)(i) provides has a similar operation in the facts of the case. To date, neither the employees nor the union have or has taken any steps to enforce such rights as the employees may have under the enterprise agreement. They appear to be content to let s 119 do its work, at least in the first instance. In those circumstances, I do not think it would be appropriate for me to take into account, as a discretionary matter, the fact that the applicant might have an obligation arising under that agreement, and it would not be appropriate to enter upon that matter because it might be the subject of litigation elsewhere. 13 I propose to grant the stay sought by the applicant. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 18 December 2014