CASE PROCEDURES – stay order – ss.604, 739 Fair Work Act 2009 – appeal – in the decision at first instance the Commission found that had Monash College acted in accordance with the provisions of the Monash College Proprietary College Ltd (Monash University Foundation Year Teaching Staff) Agreement 2012, it would have appointed some 35 of its Monash University Foundation Year teachers on an ongoing basis with Monash College – Monash College applied for a stay of the decision on the basis that the Commission erred in construing clause 9.6 of the agreement – Kellow-Falkiner Motors considered – Monash College submitted that pivotal to the operation of clause 9.6 of the agreement was whether the reference to ‘reasons’ in the clause contemplates a subjective or objective test – Monash College posited that the Commission found the required test was objective and not subjective, and this conclusion undermined the Commission’s subsequent analysis of the clause – the IEU opposed the stay application, contending Monash College’s line of appeal, which complained that the Commission erred in failing to find that the teachers the subject of the dispute notification had been employed for specific activities and/or to meet peak student enrolment, set out no basis on which the finding of fact or the failure to find a fact is impugned – on this basis, the IEU posited that Monash College had no reasonable prospect of success in respect of this line of appeal – the Commission accepted Monash College’s contention that the decision at first instance, and the effect that the decision has on the contractual relationship between the College and the relevant teachers, raised important issues with regards to the nature of fixed term and ongoing contracts under the agreement – held that Monash College had an arguable case with some reasonable prospect of success in respect of the question of leave to appeal and on the substantial merits of the appeal – found that a stay order was appropriate – decision at first instance stayed pending the hearing and determination of Monash College’s appeal on 14 July 2016. Appeal by Monash College P/L against decision of Bissett C of 6 June 2016 [[2016] FWC 3538] Re: Independent Education Union of Australia
…
