Appeal pending, penalty still proceeds: Court refuses to pause a carer's Fair Work penalty hearing

In Homes v Australian Carers Pty Ltd (No 5) [2026] FedCFamC2G 2147, the Federal Circuit and Family Court of Australia (Division 2) (Judge Lucev) refused a carer's application to stay (pause) the penalty hearing in her Fair Work case while she seeks leave to appeal. In September 2026 the Court had found that her former employer failed to give her a Fair Work Information Statement, failed to display a roster, and left travel allowance, overtime and leave loading off her payslips, but dismissed her other claims. The Court accepted one proposed ground of appeal was reasonably arguable, but held that was not enough: the contraventions found were separate from the appeal issues and she had shown no real prejudice. The penalty hearing stays listed for 23 December 2026. All paragraph references below are to the judgment.

Why it matters: Filing an appeal does not automatically put the rest of a case on hold. A party who wants a stay has to show a good reason, and an arguable ground of appeal is only the starting point. This judgment shows how a court weighs overlap, cost and delay in a split case.

At a glance

• Court and level: Federal Circuit and Family Court of Australia (Division 2), General Federal Law (single judge, first instance)
• Area of law: Employment law (Fair Work Act 2009 (Cth)); stays pending appeal
• Decision type: Interlocutory ruling on an application to stay a penalty hearing, heard 14 October 2026
• Outcome: Stay application dismissed; deadlines for penalty evidence and submissions extended (Orders 1–2)
• Standard applied: A broad discretion; the applicant must show "a reason or an appropriate case" for a stay ([32])
• Costs: Reserved (Order 3)

🧩 Facts and Issues

Background

• The carer worked for the employer, a care provider, for less than six months ([44]). Her employment ended after a short meeting with the company's director on 18 January 2022 ([36], [39]).
• She sued the company and its director in June 2022, alleging breaches of the general protections, minimum standards and award provisions of the Fair Work Act ([3]).
• The case was heard over four days in 2023 and 2024 ([7]–[15]).

How the case got here

On 7 September 2026, in Homes (No 4), the Court declared that the company had contravened the Fair Work Act ([16]):

• by failing to give her a Fair Work Information Statement when she started, as required by s 125(1), contravening s 44;
• by failing throughout her employment to display a roster of her ordinary hours, as required by cl 25.5(a) of the Social, Community, Home Care and Disability Services Industry Award 2010 (often called the SCHADS Award), contravening s 45;
• by failing to record in her payslips her entitlement to travel allowance on 50 occasions, overtime on two days, on-call overtime on six days and annual leave loading, contravening s 536(2)(b).
• The rest of her claims were dismissed. They included her claim that she was summarily dismissed (the Court found she resigned), her claim to a higher award classification, and her underpayment claims, which failed because an "absorption clause" meant her over-award pay covered the award amounts ([16], [35]–[36], [41], [53], [56]).
• The Court listed a penalty hearing for 23 December 2026, with a timetable for evidence and submissions ([16]–[17]).
• On 21 September 2026 the carer applied to the Federal Court of Australia for leave to appeal. Two days later she asked this Court to stay the penalty hearing until the appeal was decided ([18]–[19]).

What each side argued

• The carer relied on six proposed grounds of appeal ([21]). She said going ahead risked duplicated work if her appeal succeeded, with wasted costs unlikely to be recoverable under s 570 of the Fair Work Act ([23]).
• She accepted that finality, cost and delay weighed against a stay ([24]).
• The company and its director said a stay would fragment the case into separate liability and penalty appeals, that the duplication was unquantified, and that the existing declarations should go to penalty now ([25]–[29]).

The issues

• Did any proposed ground have reasonably arguable prospects of success?
• Would the carer suffer real prejudice if the penalty hearing went ahead?
• Where did the balance of convenience lie?

⚖️ Applicable Law – Legislation, Rules and Principles

• Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 33.03: a party bound by a judgment or order "may apply to the Court for an order that the judgment or order be stayed" ([31]).
• A successful party is prima facie entitled to the benefit of its judgment, and merely filing an appeal is not enough. The applicant must usually show reasonably arguable prospects of success, a low threshold assessed at a "reasonably impressionistic level" ([32]).
• The stay must also be "fair to all parties". A real risk that the appeal will be rendered nugatory (made pointless) weighs heavily but is not conclusive, and no single factor decides the outcome ([32]).
• In a "split case" the declarations at the end of the liability stage are interlocutory (not final), so leave to appeal is needed under s 24(1) of the Federal Court of Australia Act 1976 (Cth). The leave factors substantially overlap with the stay factors ([33]).
• Fair Work Act 2009 (Cth) s 570: in Fair Work proceedings each side usually bears its own costs. Costs can be ordered only in limited cases, such as proceedings brought vexatiously or without reasonable cause, or an unreasonable act causing the other side costs ([64]–[65]).
• Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190: disputes are to be resolved as quickly and efficiently as possible, using judicial resources efficiently ([72]).

📌 Authorities Relied On

• Power Flex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65: a successful party is entitled to the benefit of its judgment, and filing an appeal is not enough for a stay ([32]).
• Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 and Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2008] FCA 1867: the applicant must show a reason or an appropriate case, and the low "reasonably arguable" threshold ([32]).
• Warramunda Village Inc v Pryde (2002) 116 FCR 58: first-stage declarations in a split case are interlocutory ([33]).
• Re Culleton [2017] HCA 3 and University of Wollongong v Metwally (No 2) [1985] HCA 28: a party is bound by the way it conducted its case at trial ([56]).
• Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306: what must be shown before costs can be ordered under s 570 ([66]).

🧠 Analysis

Issue

Should the penalty hearing for contraventions already found be paused while the carer seeks to appeal the rejection of her other claims?

Rule

The Court has a broad discretion under r 33.03 but presumes its judgment correct. The applicant must show reasonably arguable grounds and that a stay is fair to all parties, having regard to prejudice and the Court's duty to resolve disputes efficiently ([32]–[33], [72]).

Application

Five of the six grounds were not reasonably arguable

• Ground 1 (complaints and inquiries): an inquiry must be made to someone able to deal with it, and the Court had found the first two were not. Her further complaint mattered only if she had been dismissed ([34]–[35]).
• Ground 2 (dismissal): she had pleaded only summary dismissal, with no alternative, so the ground departed from the case she ran ([36]–[37]).
• Ground 3 (weighing the evidence): the Court had considered the cumulative effect of the evidence, and the complaint looked like "disagreement rather than error" ([38]–[40]).
• Ground 4 (classification): her own evidence showed she met the Level 1 criteria, not Level 2 or 3 ([45]–[50]).
• Ground 6 (on-call overtime): the alternative claim under cl 28.1 of the Award was never pleaded or put in issue, so she was bound by the way she ran her case ([56]).

One ground was arguable: how the absorption clause works

The Court had applied the absorption clause globally across her whole employment, not pay period by pay period. There is very little case law on absorption clauses and none on their interaction with s 323 of the Fair Work Act (the duty to pay amounts in full), so ground 5 was reasonably arguable ([51]–[55]).

An arguable ground is not enough on its own

Even with one arguable ground, the contraventions found were "quite discrete" (separate) from those on appeal, so the factors favoured going ahead ([77]).

No real overlap with the dismissal grounds

Grounds 1–3 concerned workplace conduct and the January 2022 meeting; the declarations concerned an information statement, a roster and payslips. Apart from a possible totality adjustment (keeping the overall penalty proportionate), there was no overlap ([57]–[59]).

The money in dispute was small and easy to recalculate

The carer gave no calculation of what she might be owed if grounds 4–6 succeeded ([60]). The weekly gap between Level 1 and Level 3 pay was $141.40, against an over-award payment of $313.75 a week, and the total underpayment ever claimed was $8,127.66 ([61]). Success would need only recalculation on existing facts ([62]–[63]).

Costs were neutral at best for the carer

Because s 570 makes costs orders unlikely either way, future costs were "fairly neutral" ([69]). The Court also observed that late discovery and amendment applications had significantly increased the costs, so any unrecoverable-costs prejudice fell more on the respondents ([70]).

Delay, efficiency and the Court's own resources

Delay risked prejudice to the director, who was personally defending the case ([71]). Deciding penalty now, while the liability judgment was fresh, would let the Federal Court consider the whole outcome together. It would not make the appeal pointless, and any later penalty on remitter (when a case is sent back) could account for it ([73]). The judge also noted that, because of s 72 of the Constitution, he might not be available to hear a remitted case after a long appeal ([74]).

Conclusion

The carer had one reasonably arguable ground, but showed no significant prejudice from proceeding. The discreteness of the contraventions, finality, the costs picture, the risk of delay and the efficient use of judicial resources all favoured completing the penalty phase ([63], [73]–[77]).

🏛️ Outcome, Orders and Costs

• The stay application filed 23 September 2026 was dismissed (Order 1; [78]).
• The penalty hearing stays listed for 23 December 2026. Deadlines for penalty evidence and submissions were extended to dates between 13 November and 21 December 2026 (Order 2).
• Costs were reserved (Order 3).
• The carer's application for leave to appeal is still to be decided by the Federal Court ([18]).

🧭 Practical Lessons

• For self-represented litigants: Filing an appeal does not pause the rest of your case. You have to apply for a stay and show a real reason for it ([32]).
• For self-represented litigants: Your pleading defines your case. Arguments you did not plead or run at trial are hard to raise on appeal ([36], [56]).
• For practitioners: If prejudice is your main argument for a stay, quantify it. A qualitative account of duplication, with no hours, fees or calculations, carried little weight ([23], [60]).
• For practitioners: Expect the Court to look closely at whether the contraventions already found overlap with the appeal grounds. Discrete findings point towards going ahead with penalty ([57], [63], [73]).

🧠 Take-Home Lesson

• A reasonably arguable ground of appeal opens the door to a stay; it does not get you through it.
• Where the contraventions found are separate from the appeal issues, expect the Court to finish the case rather than pause it.

"An arguable appeal is not a pause button: without real prejudice, the penalty hearing goes ahead."

This digest is general information about a published judgment, not legal advice. For advice about your own situation, speak to a lawyer, Legal Aid or a community legal centre.