In [2025] FWC 23444, the Vice President considered Affinity Nursing’s application for a stay of a Commissioner’s decision that rejected its jurisdictional objection in Ms Thomas’s unfair dismissal matter. The key issue was whether s 606(1) of the Fair Work Act permits a stay of such a decision and whether doing so would have the practical consequence of vacating the upcoming hearing and associated directions.
The Commission noted that past authorities — Collinsville, Woodside, and PHI — establish that a stay under s 606(1) may only be granted where the decision being appealed has an “operative”, ongoing, or future effect capable of being stayed. These authorities consistently doubt that the Commission has power to stay proceedings themselves. Affinity Nursing acknowledged it was not seeking to vacate the hearing or directions directly, but contended that staying the jurisdictional decision would, in effect, suspend the Commissioner’s finding that the Commission had jurisdiction, thereby nullifying the directions and hearing timetable.
The Vice President rejected this analysis. The Commissioner’s decision had practical consequences only insofar as it led her to program the matter for a merits hearing. It did not, however, contain any coercive order or ongoing operation. It simply determined that Ms Thomas met the minimum employment period and was therefore protected from unfair dismissal. Staying such a conclusion would not remove the Commissioner’s jurisdiction nor prevent her from continuing to deal with the matter. A conclusion or finding—without operative orders—cannot meaningfully be “stayed”.
Affinity Nursing relied on Woolworths v Lin, where Clancy DP stated that a stay of a time-extension decision would “pause” directions for the substantive hearing. The Vice President observed that the reasoning in Lin was unexplained and its applicability uncertain, particularly because it was unclear whether the directions themselves were appealed. Other authorities have doubted that a stay of a decision extending time permits staying associated procedural directions.
Section 606(1) authorises a stay only of the operation of the decision under appeal. Affinity Nursing could have appealed the directions themselves but did not do so. The Vice President was not persuaded that staying the jurisdictional decision would vacate the hearing or directions, nor that it would have any practical effect.
Even assuming a stay were legally possible, the Commission held that the criteria for granting one were not met. An applicant must demonstrate (1) an arguable case with reasonable prospects of success on both permission to appeal and the merits, and (2) that the balance of convenience favours a stay.
Of the five grounds of appeal, Affinity Nursing emphasised two. The Vice President doubted the merit of the argument that Ms Thomas lacked a subjective expectation of ongoing employment, noting evidence she had been offered further engagement before her removal. However, the second ground—concerning continuity of employment despite gaps between casual engagements—was accepted as arguable and having some prospect of success, potentially requiring the Full Bench to revisit existing authority.
On the balance of convenience, Affinity Nursing highlighted the inefficiency of preparing for a hearing that might later prove unnecessary. Ms Thomas opposed a stay, emphasising her interest in timely resolution. The Vice President held that such matters are best left to the Commissioner managing the proceedings, who is better placed to assess whether the substantive matter should proceed. The hearing was listed for only one day, with limited issues, and the Commissioner had determined that the matter should progress.
Ultimately, the Vice President was not satisfied that the balance of convenience favoured a stay and refused the application.