WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Toscana WA Pty Ltd Applicant and The Western Australian Builders’ Labourers, Painters & Plasterers Union of Workers Respondent. No 206 of 1999. BEFORE HIS HONOUR THE PRESIDENT P J SHARKEY. 15 March 1999. Reasons for Decision. INTRODUCTION THE PRESIDENT: This is an application by the abovenamed applicant pursuant to s.49(11) of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”), whereby the applicant sought a stay of the operation of a decision of the Industrial Magistrate’s Court at Perth made on 17 December 1998. By that decision, His Worship imposed a penalty for breaches of an award which he found proven. The penalty amounted to $950.00. He also ordered that the defendant employer pay costs of $76.30. Further, His Worship ordered payment of an amount which he found had been underpaid to the employee concerned, Mr John Sammut. The amount concerned was $5,440.29. The Notice of Appeal was filed on 6 January 1999. The application for a stay was filed on 17 February 1999. By the application, which was opposed, the applicant employer sought a stay of that part of the Industrial Court’s decision which relates to amounts ordered to be paid in respect of— “(a) Fines totalling $950.00 (b) Underpayment of wages totalling $2268.63 which were ordered to be paid for Rostered Days Off, Over- time, Pay in Lieu of Notice and waiting time.” The complaint contained in the grounds of appeal was on the basis that the Industrial Court erred in its interpretation of the award and the entitlements which it conferred. Further, it was alleged that the learned Magistrate erred in law and fact in misconstruing the rationale in the Centurion Industries Case (AFMEPKIU v Centurion Industries Ltd 77 WAIG 319 (FB)) to conclude that offsetting an over award payment cannot occur. Finally, it was alleged that the Industrial Magistrate erred in not giving sufficient weight to the mitigating circumstances presented by the defendant in determining the level of fines imposed for each breach. A warrant has been issued for the enforcement of the order. However, it has not yet been executed. The appeal itself is listed for hearing on 16 March 1999 (next Tuesday). There were oral assertions from the bar table, on behalf of the applicant, but no evidence adduced. The allegations were to the effect that Mr Letari, a Director of the respondent, was of opinion that it would be hard to recover the proceeds of the order once the same were in the hands of Mr Sammut. Ms Harrison asserted that there was no evidence to this effect, and there was none other than the challenged assertion from the bar table. (Indeed, no evidence, oral or documentary, was adduced by either side.) Ms Harrison undertook that the respondent organisation would refund the amount of the penalty ordered to be repaid to it in the event that the appeal was successful. There were fifty-six allegations of breach of the award as alleged in the complaint proven. Ms Laferla also submitted that the amount so far unpaid could be paid into a trust account pending the hearing and determination of the appeal. PRINCIPLES The principles which apply to applications for the grant of a stay are well known, and I will not reiterate them in detail here. Suffice it to say, they were most recently expressed in Gawooleng Dawang Inc v Lupton and Others 72 WAIG 1310 at 1311. It is for the applicant to establish, on the balance of probabilities, those facts on which it asserts that the order should be made. First, let me observe that it has not been established that the balance of convenience lies with the applicant, because there is no evidence that the amount, if paid, is irrecoverable. In the case of penalty, there is an undertaking by the respondent organisation that the amount of the penalty will be returned. The amount conceded to be underpaid has now been paid. There was a delay in paying that amount, in relation to which an explanation has been made. As to the remaining amount of the underpayment ordered to be made, it has not been established that that is practically irrecoverable or difficult to recover, and there was a significant delay in this application being brought and listed for hearing. The balance of convenience lies with the respondent and its member not being further deprived of the fruits of “litigation”. As to whether there is a serious issued to be tried, nothing was said, given that His Worship expressly referred to mitigating factors to support any submission that there was a serious issue to be tried as to the amount of the penalties imposed. Further, nothing was submitted to me of sufficient cogency as a matter of law, to persuade me that there was a serious issue to be tried on the other grounds of appeal, and, in particular, that the principle in AFMEPKIU v Centurion Industries Ltd (op cit) should not apply. Having regard to s.26(1)(a) and (c) of the Act and those factors and principles which I have mentioned, there is nothing established sufficiently, or at all, to persuade me that the respondent and, through it, Mr Sammut, should be deprived of the fruits of its “judgment”, in the proper exercise of my discretion. I would dismiss the application. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1341 79 W.A.I.G.