Section 589 confers discretion to stay proceedings.

The Fair Work Commission is not bound to rigidly apply McMahon v Gould principles when determining whether to adjourn proceedings; those principles may be of broad guidance but each case must be determined having regard to its particular circumstances and to the statutory framework within which the discretion is to be exercised.

The ultimate relevant question when exercising discretion to adjourn proceedings is: what does justice require in the circumstances? Rather than elevating McMahon v Gould guidelines into rigid tests, the primary obligation is to ensure that parties are afforded a fair hearing.

Section 589 of the Fair Work Act confers discretion to stay proceedings.

The statutory discretion must be exercised having regard to the Commission's central obligation to provide a fair hearing to parties; that obligation arises directly from section 577(a) (fair and just performance) and from the implied obligation to act judicially; and one aspect of that duty is the obligation to afford a party a reasonable opportunity to put his or her case.

The statutory discretion to adjourn must be exercised having regard to the Commission's central obligation to provide a fair hearing to parties, which arises directly from s.577(a) and the implied obligation to act judicially. The primary obligation is to ensure parties are afforded a fair hearing, and the relevant question is what does justice require in the circumstances.

Filing an appeal does not operate as a stay of the decision being appealed. An applicant for a stay must establish 'special circumstances' by demonstrating that the presumption favouring enforcement of the decision should be displaced.

Whether an appeal is rendered nugatory includes consideration of whether the applicant's position will be irretrievably altered if a stay is not granted. If the appeal can be remedied through quashing and the underlying project is complete, the appeal is not nugatory.

For assessing a stay application, three criteria must be considered: (1) Is the stay necessary to preserve the subject matter or integrity of the litigation? (2) Does the appeal have reasonable prospects of success? (3) Does the balance of convenience favour the grant of the stay?

The power to grant a stay of an order made in the Industrial Relations Commission is found in s87(3) of the Industrial Relations Act 1979 (WA), which provisions are wide enough to include such jurisdiction.

A stay of an order made in the Commission will not be granted unless there are exceptional circumstances to justify it.

The Tribunal's discretion to grant a stay under s229B of the Work Health and Safety Act 2020 (WA) is guided by three key considerations: (1) whether the stay is necessary to preserve the subject matter or integrity of the appeal; (2) whether the applicant has an arguable case on the merits; and (3) whether the balance of convenience favours the grant of the stay.