C2001/1261, Transcript of Proceedings [2001] AIRCTrans 538 (10 April 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N 6549
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2001/1261

APPEAL UNDER SECTION 45 OF THE ACT
BY MORNINGTON RACING CLUB INC AGAINST
THE ORDER OF COMMISSIONER SMITH AT
MELBOURNE ON 16 FEBRUARY 2001 IN
NUMBER U2000/33755 RE TERMINATION
OF EMPLOYMENT

MELBOURNE

11.10 AM, MONDAY, 26 MARCH 2001

PN1

MR T. HURLEY: I seek leave to appear on behalf of the applicant today and the appellant in the proceeding who is the employer in the proceeding below.

PN2

MR D. MACKEN: If your Honour pleases, I have not previously appeared in the matter before. I seek leave to appear on behalf of the applicant, Mr Bellchambers, the respondent to today's appeal.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted in both instances. Mr Hurley.

PN4

MR HURLEY: Madam, this is an application to you under section 45(4) of the Workplace Relations Act and styled as a stay. It has been brought on by the registry. The import of what my client seeks is that the proceeding in this Commission before the Full Bench be heard and determined before the proceeding which is below before Commissioner Smith, so that that would save the parties being put to the expense of conducting a contested hearing before a Commissioner, only to discover thereafter, if this appeal succeeds, that the Commission has no jurisdiction. And so that is the outline of why the respondent has sought leave to appeal in the situation where the actual - the decision of Commissioner Smith does not actually, as it were, order my client to do anything or refrain from doing anything; it only determined that the worker be granted leave to bring the proceeding out of time and dismissed a jurisdictional objection.

PN5

So I am instructed that my solicitor is unable to obtain a definite date when the matter will be heard by a Full Bench, so that it is in that context that this application is brought. The proceeding before you requires the applicant for the stay to demonstrate an arguable case in the balance of convenience. Now, in terms of an arguable case, the appeal that is brought - does the Commission have in front of you the notice of appeal?

PN6

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7

MR HURLEY: And the documents that were filed somewhat belatedly, I have got to say, by the solicitors, because some of them were only received by them shortly before they were filed, and the award of the Commission in the Liquor and Accommodation Industry Licensed Clubs Award and the decision of the Commission in Peter Stevenson's matter.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MR HURLEY: Which set the material before you. The proposed notice of appeal raises for the Full Bench - we cannot avoid - the correctness of Stevenson's case, and it is our submission that Stevenson's case should be revisited in its effect on persons such as those of the worker in these situations. As the Senior Deputy President will have seen, the notice of appeal challenges the central finding of Commissioner Smith that the worker in these proceedings is a federal award employee within section 170CB subsection (1) paragraph (c), as that term is defined in section 170CD subsection (1).

PN10

And it is our submission that it is only - this Commission only has jurisdiction where a federal award employee is employed by a constitutional corporation. A federal award employee is defined to mean an employee whose terms and conditions are governed by - sorry, I withdraw that - whose terms and conditions of employment are governed by an award. And there are three terms that are used in the Act: the principal term, the one that gives this Commission jurisdiction, is the term governed, which appears in the definition of federal award employee.

PN11

That is the principal definition and the one that was not adverted to either in our submission by - in Stevenson's case nor below. The concept of a federal award - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Where is the "governed" again?

PN13

MR HURLEY: In the definition of federal award employee.

PN14

THE SENIOR DEPUTY PRESIDENT: In what section?

PN15

MR HURLEY: 170CD(1), the definition.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR HURLEY: Federal award employee means an employee, any of whose terms and conditions of employment are governed by an award, relevantly a certified agreement or an AWA. Then in subsection 3, the section provides:

PN18

For the purposes of this division an employee is taken to be employed under award conditions if both wages and conditions of employment of the employee are regulated.

PN19

So the first concept is governed. In subsection 3 the concept is regulated. Now, the third term that is picked up comes in via the regulations, which have been - which the Stevenson's case and below concentrated on, but the point of the appeal, the principal point of the appeal, is whether the worker in these situations is a federal award employee in the first place, and whether any of the terms and conditions of his employment are governed by the award. I take it the Senior Deputy President has - we have mentioned the various exhibits that were before Commissioner Smith. They revealed that the man was employed without a service agreement between about October 1997 and 14 November 1998, and on 14 November 1998 a service agreement was entered into between the parties, and that is an exhibit - that was an exhibit before Commissioner Smith.

PN20

And it sets out, in our submission, comprehensively, the terms and conditions of Mr Bellchambers' employment, and it is our submission that in the face of that comprehensive document, which is called a service agreement, dated 4 November 1998, it cannot be said that Mr Bellchambers was a federal award employee, because none of the terms and conditions of his employment were governed by an award.

PN21

THE SENIOR DEPUTY PRESIDENT: The service agreement, that was neither a certified agreement nor an Australian Workplace Agreement?

PN22

MR HURLEY: No, no, it was not. But the Commission no doubt has seen the relevant award has the clause that was discussed in Stevenson's case and was raised before Commissioner Smith about the clause 13.5.2. The term, which is an employee shall earn in excess of 50 per cent above the award rate of pay for their classification are exempt from the terms and conditions of the award, except as to four clauses: 16.1 expenses, 17 superannuation, 21 annual leave, and 28 long-service leave. Now, each of those topics is dealt with in a clause of this service agreement.

PN23

Expenses is dealt with in clause 7, and is to the same effect that the employer is required to reimburse expenses. Superannuation is dealt with in clause 9, and provides the employer is obliged to contribute 7 per cent of the percentage or the legislative requirement, whichever is the higher. So that Mr Bellchambers had that benefit. Annual leave was referred to in clause 10, which required him - which entitled him to four weeks, the time to be taken by the committee, and long-service leave is covered by clause 11 of the service agreement. Now - - -

PN24

THE SENIOR DEPUTY PRESIDENT: Is it implicit in what you say that but for the service agreement you concede that the Liquor and Accommodation Industry Licensed Clubs (Managers and Secretaries) Award 1998 would have applied to the applicant in the matter?

PN25

MR HURLEY: No, because the rate of remuneration that he was receiving was way in excess of 50 per cent more than the maximum rate. The maximum rate on the copy I have was $39,114.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, but he was only receiving that amount pursuant to the service agreement, wasn't he?

PN27

MR HURLEY: Yes, and from November 1998.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, so let me repeat the question: do you concede that, but for the service agreement, the applicant would have been covered by the Liquor and Accommodation Industry Licensed Clubs (Managers and Secretaries) Award 1998?

PN29

MR HURLEY: No. Because before that he was receiving the same rate of remuneration pursuant to a less formal contract of employment. It was not the service agreement.

PN30

THE SENIOR DEPUTY PRESIDENT: So is it part of your case that this employee, during his employment with the appellant in this matter, never came within the terms of that award?

PN31

MR HURLEY: Yes. The only hesitation I have is I do not now the precise rate of pay he started on between his first commencement of employment in October 1997 and the date of the service agreement in November 1998. But that is - - -

PN32

THE SENIOR DEPUTY PRESIDENT: And is that because of your view that if you are paid more than the terms of the award then you are not covered by the award?

PN33

MR HURLEY: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR HURLEY: The point we make, and we made before Commissioner Smith, is that what in Stevenson's case approaches the question in paragraph - it reaches its conclusion in paragraph 13 of Stevenson's case. There are three terms here, as I have hopefully expressed; that is the concept of a federal award employee who - any of his terms and conditions are governed by the award. There is the concept of whether an award - the employee's wages and conditions are both regulated. And then in the regulation, it uses the term bound. So there are three; there is the term governed, the term regulated and the term bound.

PN36

And in clause 13, in the last sentence of Stevenson's decision at clause 13, the learned Full Bench concluded that:

PN37

The employer is bound either to pay the wages prescribed as a minimum rate prescribed in the classification or if the employer wishes to escape the operation of all of the provisions of the award save and except the four excluded provisions, the employer must pay a rate 50 per cent above the classification.

PN38

Well, the situation here is that the employer does pay 50 per cent more than the award - the amount specified, and the four terms and conditions are specified in the service agreement, and therefore we submit it is - to state that those who are bound by the award are bound by the award is to state the obvious. But it does not define those who are not bound by the award. And in our submission the decision of the Full Bench, in terms of an arguable case, raises that fallacy that they are defining the answer in terms of the question.

PN39

To say that someone is bound, they are defining people who are not bound as people who are bound because there are people who are bound by the award. Now, it is our submission that the whole question that the Commission in Stevenson's case addressed, which is the operation of the exclusion provisions in section 170CC subsection 1 paragraph (e), which is picked up in subsection 2 and relevantly in subsection 3, because taking it backwards that subsection 3 applies when the employee's remuneration is not partly - wholly or partly determined on the basis of commission or piece rates, which is the situation here, and exceeds the rate specified, which is the situation here.

PN40

Subsection 2 provides that the regulations may identify as a class of persons employees for the purpose of paragraph (e), employees not employed under award conditions, and to whom subsection 3 or 4 applies. Well, we submit the applicant here, Mr Bellchambers, was simply not employed on any view after November 1998 on award conditions, and therefore, while the regulations were authorised under paragraph (3), they still - the whole conclusion of Stevenson that the employer was bound by the award because, to be unbound by it, he had to be bound by it in the first place would apply to my client's situation, but you do not get that far because the man was not a federal award employee in the first place.

PN41

The point we make before you, Senior Deputy President, is simply that there is an arguable case, and you do not have to determine the appeal. Clearly there is a difficulty; that is a recent decision of a Full Bench in circumstances that seem to be similar. I am not entirely certain - it does not appear from the decision of the Full Bench whether Mr Stevenson had a service agreement that was as comprehensive as the one between Mr Bellchambers and my client. But the question for you today is whether or not there is an arguable case. And we submit that notwithstanding the recent decision of the Full Bench, it is a matter where we submit it is arguable that there is a fallacy here that to define people who are not bound by an award, by reference to how they become unbound by it, contains an error; and secondly, it fails to address whether the applicant, Mr Bellchambers, was a federal award employee in the first place.

PN42

The second thing that is in issue today is the balance of convenience in terms of a stay order. Now, if the Commission is able to accommodate this appeal promptly, then the need for a lengthy stay order obviously diminishes. And the only - as I repeat, the reason that this application was brought is so that the parties would not have to undergo an entire and lengthy and contested hearing where the jurisdiction of the Commission has been questioned, and we submit legitimately questioned. So we do not seek a lengthy stay order; we will accommodate an early hearing of the appeal, but we submit that it is inconvenient both to my client and to Mr Bellchambers to put everyone to the expense and effort of a contested hearing where, because of the comprehensive nature of the employment agreement, we submit it is more than arguable that he is not a federal award employee and the Commission lacks jurisdiction over the matter.

PN43

So we seek an order that the matter be heard quickly and that the operation of the order be stayed pending the hearing of the appeal.

PN44

THE SENIOR DEPUTY PRESIDENT: In terms of arguable case, you have only raised the issue of, in essence, Stevenson's case, and whether the applicant at first instance comes within the Commission's jurisdiction, having regard to the ins and outs of that case. But in your notice of appeal you rely on other matters. Are you still pursuing those?

PN45

MR HURLEY: We still pursue them but we see those as more of the same questions put in another way. There are two fundamental questions: is he a federal award employee and is he - I suppose if the answer to that is yes, then is he excluded because is his employer bound - sorry - one commits error, to paraphrase here, is the employer - whether the employer - and it is important to look at regulation 30(b)(4) directly, which provides that:

PN46

An employee is taken not to be employed under award conditions unless the employer is bound in relation to the employee's wages and conditions by an award.

PN47

Now, there is no dispute that my client is bound by the award, but it is not whether it is bound generally or to other employees, it is whether it is bound in relation to the employees' wages and conditions. And we submit it is not bound in these circumstances where the man is receiving more than 50 per cent above the wages and the conditions are regulated by a service agreement which is more generous. So to answer your question, Senior Deputy President, we do - ground of appeal 1 is the federal employee point. Then grounds 2 and 3 and 4 relate to excluded employees.

PN48

Ground 5 is that the decision in Stevenson was in error because it contradicted those grounds of appeal. Ground 6 relates to discretionary matters about extending the - what was before Commissioner Smith was an application for an extension of time brought by my learned friend, and we cross-applied for an order that - not cross-applied; we resisted that application partly on the ground there was no jurisdiction. Commissioner Smith granted the application. There were some discretionary considerations. That aspect of the appeal is secondary to the jurisdiction point.

PN49

We submit that if the Commission has not got jurisdiction, well, the discretionary points do not arise.

PN50

THE SENIOR DEPUTY PRESIDENT: You do not raise on appeal the issue of whether it was a contract for a specified period of time?

PN51

MR HURLEY: No, no.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes.

PN53

MR HURLEY: I could repeat myself, but unless I can be of further assistance to the Commission, we seek an order that the order be stayed, or alternatively a direction that the matter be heard promptly by the Full Bench, and before it be heard as a trial.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Macken.

PN55

MR MACKEN: If your Honour pleases, I think I can be somewhat more brief. I do not disagree with my friend's suggestion that in order to obtain a stay before you today it would be necessary to show there is an arguable case in the context of the appeal, and also that the balance of convenience favours an order in those terms. In terms of the first point, and without making too much of the matter, we were served late in the piece with the appeal papers and I understand the reasons for that. But as I analyse the grounds of appeal, they appear to be two.

PN56

Firstly, that the Commissioner applied a decision of a Full Bench of this Commission; not that he misapplied it, but he applied a decision of the Full Bench. And secondly, that there were grounds to suggest that the Commissioner's exercise of discretion is carried. That is essentially the two bases for appeal because, as my friend just said, grounds 1 to 4 turn in fact upon the conclusion that the decision of the Full Commission in Stevenson's case was wrong and therefore was wrongly applied by the Commission. And ground 6 deals with those matters simply under the exercise of the discretion.

PN57

So that is the two bases of appeal; firstly that a Commissioner exercise a discretion, if I can deal with that one first, and that discretion was carried. That is a courageous ground for appeal; rarely, if ever, successful. Generally benches on appeal - courts on appeal, for that matter, leave it to the judge below to exercise the discretion and rarely interfere with it. In relation to the first matter, the Stevenson case, the applicant did nothing more and nothing less than urge the Commission to apply a decision of a Full Bench, which not unnaturally the Commissioner at first instance regarded as binding upon him.

PN58

I accept that my friend seeks, in the context of these proceedings, to invite the Full Bench to revisit that decision which was delivered on 20 October 2000, but I would urge - and the contention is that relevantly the circumstances of Mr Bellchambers were on a par with the circumstances in that case. Now, again this is not a case where it is being urged upon the Commission that the decision was misapplied in some way. My submission to you today would be, in the context of an application for a stay, simply asserting that a decision of a Full Bench, arguably binding as a matter of precedent by a single Commissioner, is wrong at law is not in itself an arguable basis for the granting of a stay.

PN59

It is - I accept the respondent disagrees with that decision, but the Commission - I do not read into the grounds of appeal that it was misapplied. So we say in relation to that that in itself is not a basis for demonstrating that there is an arguable basis that the decision was wrong; certainly not for determining a stay. At the moment, that decision of the Full Bench is the law and is regarded and should be regarded as being correctly decided. There is not really, I suppose, not much that one can say, much more than that. We simply applied - or invited the Commissioner to apply the decision of the Full Bench. He did so.

PN60

In terms of the balance of convenience, there is prejudice that the applicant suffers from any prolongation of this matter proceeding to a substantive hearing. It is now approximately six months since the putative decision to terminate was effected. We have been without employment for that period of time. This is a proceeding in which the applicant is actively seeking and pursuing reinstatement and has not resiled from that position. Obviously it - the longer the proceedings continue without being substantively dealt with, the more reduced is the likelihood that, amongst other factors, the Commission will regard reinstatement as something that it should appropriately order if the circumstances warrant.

PN61

In terms of prejudice, I hear what my friend says. Obviously if the Full Bench could sit tomorrow and decide this matter, very little prejudice attaches to the matter then proceeding by way of substantive hearing, with a hearing date and the preparation for the hearing date continuing. There are two suggestions I would make in relation to that: firstly, obviously there is preparation for a substantive hearing that needs to take place before the substantive hearing proceeds. If there were circumstances in which your Honour could flag the file as one worthy for prompt consideration of despatch by a Full Bench on appeal, it might well not be necessary to make any other order, other than the fact that the matter proceed and we would get a hearing date in due course for the substantive application.

PN62

Arguably it would happen at some time after the Full Bench were to hear and dispose of the matter, if it was able to do so quickly. In the meantime we would not lose the time that we will otherwise lose in terms of the usual orders for the preparation of outlines of witness statements and all the material. True, if the appeal proceeds and is upheld there would be a lot of work in that regard; not too much work but some work that would be wasted. But the prejudice of allowing any period of time to simply sit idle while we wait for the appeal in the circumstance of someone who is pursuing reinstatement and has been unemployed for more than six months is, I would respectfully submit, outweighed by the inconvenience of both parties proceeding on the assumption that the appeal will be dismissed and the matter will proceed to a substantive hearing.

PN63

The other alternative suggestion that I could make is my friend - or the respondent does not have appeal as of right; he must persuade the Full Bench that it is appropriate to appeal and that leave to appeal be granted in the circumstances. I know it is the practice of the Commission to deal with that in the running of the appeal, and that makes a lot of sense. In circumstances, however, as here, where the two bases of appeal, as I understand them, is the Full Bench got it wrong last October, and secondly the discretion of the Commissioner miscarried.

PN64

If the Full Bench was not able to dispose of the substantive matters on appeal, maybe it might be possible at least to slot in, in the short term, a proceeding simply to decide the sole question of whether leave to appeal should be granted. My friend actually has to persuade the Full Bench that six months after it delivered its decision that it was wrong. It may be an unusual situation, but maybe if that will enable that aspect of the matter to perhaps dispose of it, the question of whether leave to appeal could perhaps be dealt with as a separate preliminary issue and dealt with promptly. In that situation then there would not be significant delay in terms of the matter proceeding to a substantive hearing.

PN65

There is no precedent I can suggest in terms of that sort of proposal. Again I am focussing on prejudice to the applicant - or to an applicant who is seeking reinstatement; who has the advantage; who has successfully resisted at first instance the submission that the matter is without jurisdiction, and in circumstances where that decision turned on the application of decisions of this Commission.

[11.39am]

PN66

Again, I do not want to harp on it, but if it is the case that a decision on jurisdiction is going to be able to be challenged on the basis of an arguable case being demonstrated on the basis that a full bench decision correctly applied, and that is not in dispute, is wrong, and the Commission's workload, particularly a full bench's workload is going to be quite onerous indeed.

PN67

In summary, in terms of the preliminary threshold we say there is no arguable case demonstrated. This contention is not that a full bench decision was misapplied, it is just that the full bench decision was wrong, that is not a proper basis for an arguable case, in my submission. Secondly, the other grounds for appeal are certainly not an arguable ground for appeal, since they simply turn on whether an exercise of discretion open to the Commission to make miscarried.

PN68

In my submission, the full bench, if the matter proceeds to appeal, will be invited to accept the submission that that was a matter for the Commission to exercise, and it should not be interfered with by the full bench. In the second part, there is prejudice that the applicant suffers here to the extent that there is any delay at all in the matter proceeding to a substantive hearing.

PN69

If the matter can be dealt with promptly by a full bench, no prejudice. If the likelihood is that it cannot, then what we would be seeking today from your Honour is an order at least that the matter proceed for the preliminary matters, in the expectation, perhaps, that the full bench will in the meantime before it proceeds to an agreed slotted-in substantive trial date, deliver judgment on the appeal. If the Commission pleases.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you. Anything in reply, Mr Hurley?

PN71

MR HURLEY: Madam, if the suggestion that the full bench consider whether leave to appeal be granted is a threshold question, we would not - if that would get the matter before the full bench promptly, we would not resist that. The only problem - we would make the suggestion that the submissions for that question are probably the same as would be made on the appeal in any event, that there would not - effectively, it is the hearing of the appeal. But we do not disagree with that approach, if it will get the matter before the full bench promptly.

PN72

Otherwise, madam, no, I do not believe I can - I would be repeating myself if I said other than we join issue.

PN73

THE SENIOR DEPUTY PRESIDENT: Mr Hurley, one issue you might be able to clarify for me is, you rely on the issue of a Federal award employee. Is that necessary in the case of the applicant in this instance who is an employee in Victoria?

PN74

MR HURLEY: Well, yes, because the provision that - that provision relates to the matters that were referred from Victoria, but those provisions cannot give this Commission any greater jurisdiction than the Federal Act has given it. So it is the provisions in section 170 and Division - Part VIA that determine the jurisdiction of the Commission. It is not as though the Commission has a sort of open slather in relation to Victorian employees. Those Victorian employees still must fall within the jurisdiction of the Commission.

PN75

The Commission is referring to the provision in section 492, I believe.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR HURLEY: But that begins:

PN78

Without affecting its operation apart from this section, Division 3 of Part VIA also has effect in relation to the termination of employment at the initiative of the employer of any employee in Victoria.

PN79

In our submission, that does not add to or subtract from the jurisdiction of the Commission which is set out in section 170CD(1), which enables an application to this Commission for relief by a person who is a Commonwealth public sector employee, a Territory employee, a Federal award employee employed by a constitution or corporation, or, paragraph (d), those persons.

PN80

It does not - the answer to your Honour's question is, no, the jurisdiction of the Commission is as set out in section 170CD, and relevantly the applicant had to establish to this Commission that he was a Federal award employee.

PN81

THE SENIOR DEPUTY PRESIDENT: What is the purpose of section 492, then?

PN82

MR HURLEY: Well, it simply gives this Commission - well, it puts into practice here the referral from Victoria to the Commonwealth of its powers, but it does not add to the jurisdiction of the Commission, which is as defined in section 170CD(1).

PN83

THE SENIOR DEPUTY PRESIDENT: So section 492 is otiose, is it?

PN84

MR HURLEY: It is declaratory, but if the Commission has a jurisdiction under 170CB(1)(c), it is not as though there is one jurisdiction under 170CD(1) for Federal award employees, and then some undescribed jurisdiction for every single employee in Victoria. Because section 170CD provides in subdivision (b) applies so far as it relates to an application to the Commission for relief, if the employee concerned was before the termination described in paragraphs (a), (b) (c) or (d). It does not have a sub-paragraph (e) that there is every other Victorian employee who is not in (a), (b), (c) or (d).

PN85

THE SENIOR DEPUTY PRESIDENT: Is that not added by section 472?

PN86

MR HURLEY: Not in our submission, no, it does not give the - because that would be - well, no, it doesn't, in our submission; the jurisdiction is as is enacted in 170CB.

PN87

MR MACKEN: I don't know if it is of some assistance to the Commission, I suppose, there is no dispute that section 492 does not create a jurisdiction in terms of overcoming constraints in terms of monetary limits, and things like that. Perhaps the only benefit that it does confer upon employers in Victoria is that in Victoria we do not need to worry about whether one is employed by a constitution or corporation, which is a consideration in other states.

PN88

But I would concede the point that one still has to demonstrate that one, even in Victoria, no matter who employs you, constitution or corporation, sole practitioner, partnership, whatever, one still has to satisfy either the monetary limit, or demonstrate that one is a Federal award employee. But that I think is the extension of Division 6 in those cases by section 492. If the Commission pleases.

PN89

THE SENIOR DEPUTY PRESIDENT: Thank you. I will adjourn this matter briefly.

SHORT ADJOURNMENT [11.48am]

RESUMED [12.38pm]

PN90

THE SENIOR DEPUTY PRESIDENT: This matter concerns an application for the stay of a decision made by Commissioner Smith in transcript on 16 February 2001 and reduced to writing in PR 902437. In that decision the Commissioner determined inter alia that:

PN91

1. Mr Bellchambers, the applicant in the matter before Commissioner Smith, was a Federal award employee, having regard to the decision of the Full Bench of the Commission in Stevenson v Moonee Valley Racing Club Incorporated, Print T2285, and therefore Mr Bellchambers fell within the jurisdiction of the Commission's unfair dismissal provisions notwithstanding his remuneration exceeded the specified rate, and -

PN92

2. It would be unfair not to accept MR Bellchambers' section 170CE application that was lodged out of time.

PN93

Mornington Racing Club Incorporated has appealed the Commissioner's decision on the above two issues. At the hearing of the stay application, Mornington Racing Club submitted that there was an arguable case on the merit and leave to appeal on the basis that, (a), the decision of the Full Bench in Stevenson is wrong in law on the true construction of sections 170CB(1)(c), CC, CD(1) and (3), and regulation 30B(1)(f) and (4), and having regard to the terms of Mr Bellchambers' service agreement. And, (b), the Commissioner miscarried in the exercise of his discretion to accept Mr Bellchambers' section 170CE application out of time.

PN94

I am not satisfied on the submissions put to me at the stay order hearing that there is an arguable case that the Commission does not have jurisdiction with respect to Mr Bellchambers' section 170CE(1) application because he was not a Federal award employee at the relevant time, or because he was excluded by the operation of sections 170CC and regulation 30B. Nor am I satisfied on the submissions put to me that there is an arguable case that Commissioner Smith erred in the exercise of his discretion to accept Mr Bellchambers' section 170CE application out of time.

PN95

Accordingly, I am not satisfied that there is an arguable case leave to appeal will be granted in this matter.

PN96

Although I do not need to go to it, I am satisfied the balance of convenience is against the granting of the stay order in this matter. The hearing of the merits of Mr Bellchambers' section 170CE(1) application might put the parties to unnecessary costs of litigation if a Full Bench of the Commission ultimately decides the Commission is without jurisdiction with respect to Mr Bellchambers' application.

PN97

However, in my view, in this matter that consideration is outweighed by the prejudice that would be caused to Mr Bellchambers, who remains unemployed, by delaying the hearing of the merits of his application until after the appeal of the Commissioner's decision is heard and determined. The stay order in this matter is therefore refused.

PN98

I will now adjourn.

ADJOURNED INDEFINITELY [12.41pm]