CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – appeal – Commission issued a decision granting an application by AGL Loy Yang P/L (AGL) to terminate an enterprise agreement pursuant to s.226 FW Act – notice of appeal lodged by Construction, Forestry, Mining and Energy Union (CFMEU) – notice of appeal sought stay of Decision and Order pending determination of appeal – before granting stay, Commission must be satisfied of existence of arguable case with some reasonable prospects of success concerning leave to appeal and substantive merits, and the balance of convenience must favour the order being stayed [Edghill] – CFMEU argued decision maker at first instance erred in construction of clause of enterprise agreement and by accepting an undertaking by AGL in circumstances where the clause had not been honoured – Commission of view that CFMEU’s argument satisfied first limb of Edghill – AGL proposed to give undertakings in lieu of the granting of the stay – undertakings offered did not extend to maintaining minimum staffing levels provided for by the Agreement – AGL not willing to give this undertaking as minimum staffing levels rendered AGL vulnerable to industrial action in the form of a campaign of absenteeism – CFMEU proposed to give its own undertakings to supplement grant of stay – CFMEU submitted it would undertake not to engage in industrial action and that it would recommend its members not engage in industrial action – Commission not satisfied undertakings would provide sufficient assurance no industrial action would take place – Commission satisfied balance of convenience favours grant of stay order, conditional upon the CFMEU not organising and the CFMEU’s members not engaging in any industrial action prior to the issue of the decision in respect of the appeal – stay granted subject to condition identified. Appeal by Construction, Forestry, Mining and Energy Union against decision and order of Clancy DP of 12 January 2017 [[2017] FWCA 226] Re: AGL Loy Yang P/L t/a AGL Loy Yang
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