CASE PROCEDURES – stay order – s.604 Fair Work Act 2009 – appeal – Lawrence DP issued three orders – KNF Construction (KNF) has sought a stay of two of the orders – the order which required KNF to produce list of its employees with classification/work area covered by application with information to be treated as confidential; and the order which listed the matter for hearing on 23 February 2017 – KNF did not comply with order to produce list of employees and sought stay of the order – submitted that to do so prior to hearing of stay application would defeat the capacity of Full Bench to give relief – Commission found there needs to be an arguable case with some reasonable prospects of success both on question of permission to appeal and appeal itself and balance of convenience must weigh in favour of order subject to the appeal being stayed – held balance of convenience does not warrant the granting of a stay as effect of granting the stay would be to stay proceedings before Lawrence DP – Commission did not accept KNF submission that balance of convenience favours stay because Lawrence DP has prejudged central issue namely whether petition is appropriate way to determine if majority want to bargain – majority support determination is important step in bargaining process – if appeal is unsuccessful matter will need to be determined by which time there may be argument that petition CFMEU seeks to rely upon will not be most current evidence of whether employees want to bargain and application may be rejected – is possibility if matter not heard and determined the employees will be denied opportunity to bargain – Commission did not accept KNF’s that denial of procedural fairness has crystallised – cross examination of CFMEU witnesses provided basis for KNF to apply to Lawrence DP to vary order – KNF may also be able to put forward evidence from employees to cause Lawrence DP to vary or revoke order – it cannot be said that refusal to grant stay of orders denies appellant right to rely on grounds in this appeal or in any appeal against a majority support determination if it is made – party the subject of an order is required to comply with order until a stay order is issued – applying for stay does not entitle party to ignore its obligations – accepted that there was delay in appeal being allocated for the determination of the stay it did not entitle KNF to ignore obligation to comply – held the balance of convenience favours the refusal of stay application – not necessary to consider whether KNF’s appeal is arguable with some reasonable prospects of success – did not consider KNF’s failure to comply with order to produce documents – application for stay dismissed. Appeal by O’Keeffe Heneghan P/L & Rocky Neill Construction P/L & Auslife P/L t/a KNF Construction against order of Lawrence DP of 9 February 2017 [[2017] FWC 780] Re: Construction, Forestry, Mining and Energy Union
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