1
Fair Work Act 2009
s.604 - Appeal of decisions
National Union of Workers - New South Wales Branch
v
Nick Belan
(C2017/1273)
VICE PRESIDENT HATCHER SYDNEY, 13 MARCH 2017
Appeal against an interlocutory decision in transcript of Deputy President Dean at Sydney on
8 March 2017 in matter number U2016/7463.
[1] This is an edited version of the decision given on transcript at the conclusion of the
hearing of this matter on 9 March 2017.
[2] Mr Nick Belan has been dismissed from his employment as an official of the National
Union of Workers - New South Wales Branch (NUW) on the basis, I am informed by the
parties, of admissions he has made in the Royal Commission on Trade Union Governance and
Corruption concerning unauthorised use of his union credit card. He has applied to this
Commission for an unfair dismissal remedy against the NUW, namely reinstatement. The
matter is currently being heard before Deputy President Dean. In the hearing Mr Belan has
called as a witness Mr Derrick Belan, his brother and the former Secretary of the NUW. Mr
Belan has or will give evidence concerning the authorisation of the credit card expenditure of
Mr Nick Belan. Mr Derrick Belan has himself been charged with a number of criminal
offences arising from his period in office as the NUW Secretary, including charges of
financial misappropriation.
[3] Mr Derrick Belan commenced giving evidence before the Deputy President on
Wednesday 8 March 2017. Shortly after his cross-examination by the NUW’s counsel began,
and it became apparent that Mr Derrick Belan intended to invoke the privilege against self-
incrimination in respect of any matter the subject of the criminal charges against him, the
NUW applied for an indefinite adjournment of the proceedings pending the finalisation of the
criminal charges against Mr Derrick Belan. It claimed that it was not in a position to properly
test Mr Derrick Belan’s credit in the circumstances described. The Deputy President refused
the adjournment application and indicated that the matter would resume before her on
Tuesday 14 March 2017. That decision was issued on transcript and later in the day the
Deputy President issued a statement confirming that decision. It simply reads:
“This Statement confirms the decision given in transcript on 8 March 2017 to refuse the
Respondent’s application for an adjournment of U2016/7463 pending the outcome of
Mr Derrick Belan’s criminal proceedings.”
[2017] FWC 1439
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 1439
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[4] The NUW has now lodged an appeal against that decision, for which permission to
appeal is required. As part of that appeal it has also sought on an urgent basis a stay of the
decision under appeal having regard to the anticipated resumption of the proceedings before
the Deputy President on 14 March 2017. The NUW’s Notice of Appeal contends among other
things that the learned Deputy President was wrong to refuse the adjournment and thus permit
the reception of evidence from Mr Derrick Belan, that the decision placed the NUW at a
significant and irremediable disadvantage, that the decision failed to properly balance the
competing interests as between the applicant and the respondent, and that as a matter of
fundamental fairness the NUW should not be forced to deal with evidence from Mr Derrick
Belan prior to the disposition of the very serious criminal charges against him.
[5] This decision is concerned with the NUW’s application for a stay. The principles
applying to stay applications in this jurisdiction are well established. They are as stated in the
decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner
Motors Pty Ltd.1 This decision has been followed in a number of cases decided under the Fair
Work Act 2009 (FW Act). Paragraph [5] of that decision states:
“[5] In determining whether to grant a stay application the Commission must be
satisfied that there is an arguable case with some reasonable prospects 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] In applying those principles, the required assessment of an appeal’s prospects of
success for the purposes of determining a stay application is necessarily of a preliminary
nature only, since the Commission will not have had the benefit of hearing the appellant’s full
argument and may not have had the opportunity to comprehensively peruse the case
materials.2
[7] In considering the stay application it is necessary to state at the outset that I have some
doubt as to the efficacy of the application. Under s.606 of the FW Act, the Commission is
empowered to grant a stay of the decision under appeal, not a stay of the proceedings that are
the subject of the decision, which it appears to me is in substance what the appellant here
desires. In this connection I refer to a decision of this Commission in Construction, Forestry,
Mining and Energy Union v Collinsville Coal Operations Pty Limited.3 However,
notwithstanding those doubts, I shall proceed on the presumption that a stay order to the effect
sought may be granted under the FW Act.
[8] Having regard to the materials and arguments put before me at this stage, I am not
satisfied that the appeal is arguable with sufficient prospects of success. The decision made by
the Deputy President was an interlocutory procedural decision of a discretionary nature. It is
well established that appeals from such decisions will not ordinarily be encouraged. In
considering the adjournment application, the Deputy President was required to undertake a
balancing of justice between the parties. The fact that a particular witness invoked the
privilege against self-incrimination could not, as part of that balancing exercise, have been by
1 [2000] AIRC 785, Print S2639
2 Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]
3 [2014] FWC 4276
[2017] FWC 1439
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itself determinative of the discretionary judgement that was required to be made. In that
respect I refer to the Federal Court decision in Websyte Corporation Pty Ltd v Alexander
(No.2).4
[9] In circumstances where:
1. Mr Nick Belan sought reinstatement as a remedy in the substantive proceedings, which
suggests that the matter should be heard sooner rather than later;
2. by the time the adjournment application was made he had already given the entirety of his
evidence without apparent difficulty;
3. the adjournment sought is for an indefinite period in circumstances where there could be
no certainty whatsoever as to when the criminal proceedings against Mr Derrick Belan
would be completed; and
4. the matters adverse to the credibility of Mr Derrick Belan, upon which the NUW sought to
rely, were already the subject of adverse findings by the Royal Commission which the
NUW is in a position to place before the Commission;
it appears to me that the Deputy President’s refusal of the adjournment application was a
patently reasonable exercise of the discretion. The NUW has not pointed to any particular
error in the decision, at least on the arguments put to date. Its appeal only appears to exhibit
general dissatisfaction at the outcome arrived at.
[10] In those circumstances, it is not necessary for me to deal with in any detail the balance
of convenience. I simply indicate that had it been necessary to do so, I would not have been
persuaded that balance of convenience positively favoured the grant of a stay.
[11] In those circumstances the appellant’s application for a stay is dismissed. As earlier
indicated the parties can expect the appeal to be listed for hearing at least on the question of
permission to appeal, if not in its entirety, in the period of 1-5 May 2017.
VICE PRESIDENT
Appearances:
J. Nolan of counsel with M. Burns solicitor for the National Union of Workers – New South
Wales Branch.
P. Lowson of counsel with A. Mataere solicitor for N. Belan.
4 [2012] FCA 562
OF THE FAIR WORK MISSION THE
[2017] FWC 1439
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Hearing details:
2017.
Sydney:
9 March.
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