Appeals

See Fair Work Act ss.375A and 604

A person who is aggrieved by a decision made by the Fair Work Commission (other than a decision of a Full Bench or Expert Panel) may appeal the decision to the Full Bench with the permission of the Commission.[1]

A decision of the Commission includes any decision of the Commission, however described.[2]

However, a ‘decision of the Commission’ does not include the outcome of a process carried out:

• by mediation or conciliation, or
• by making a recommendation or expressing an opinion.[3]

The mere conduct of a conciliation conference does not constitute the making of a decision which can be subject to an appeal.

A person who is aggrieved by a decision made by the Full Bench or a Judicial Member such as the President may apply to the Federal Court for a judicial review.[4]

An appeal must be lodged with the Commission within 21 days after the date the decision being appealed was issued.[5] 

If an appeal is lodged late, an application can be made for an extension to the time limit.[6]

Related information

• What is a day?

In each appeal, a Full Bench of the Commission needs to determine 2 issues:

• whether permission to appeal should be granted, and
• whether there has been an error in the original decision.

Permission to appeal

The general requirements relating to appeals are altered in the case of appeals against dismissal dispute arbitration decisions.

The Fair Work Act 2009 provides that the Commission must grant permission to appeal to the Full Bench if it is satisfied that it is in the public interest to do so.[7] Permission to appeal a dismissal dispute arbitration decision must not be granted unless the Commission considers that it is in the public interest to do so.[8]

If the alleged error in the original decision is an error of fact, then the person making the appeal must persuade the Full Bench that it is a significant error of fact.[9]

Public interest

The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.[10]

Some considerations that the Commission may take into account in assessing whether there is a public interest element include:

• where a matter raises issues of importance and general application
• where there is a diversity of existing decisions so that guidance from an appellate court is required
• where the original decision manifests an injustice or the result is counter intuitive, or

that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[11]
The public interest test is not satisfied simply by the identification of error or a preference for a different result.[12]

Grounds for appeal

Error of law

An error of law may be a jurisdictional error, which means an error concerning the Commission’s power to do something, or it may be a non-jurisdictional error concerning any question of law which arises for decision in a matter.

In cases involving an error of law, the Commission is concerned with the correctness of the conclusion reached in the original decision, not whether that conclusion was reasonably open.[13]

Significant error of fact

In unfair dismissal cases, if the error that is alleged is an error of fact, then the appellant must demonstrate that it is a significant error of fact.[14]

An error of fact can exist where the Commission makes a decision that is ‘contrary to the overwhelming weight of the evidence ...’[15]

In considering whether there has been an error of fact, the Commission will consider whether the conclusion reached was reasonably open on the facts.[16] If the conclusion was reasonably open on the facts, then the Full Bench cannot change or interfere with the original decision.[17]

It is not enough to show that the Full Bench would have arrived at a different conclusion to that of the original decision-maker.[18] The Full Bench may only intervene if it can be demonstrated that some error has been made in exercising the powers of the Commission.[19]

Permission to appeal granted

Duty of the Commission to provide adequate reasons for decisions

Dianna Smith T/A Escape Hair Design v Fitzgerald [2011] FWAFB 1422 (Acton SDP, Cartwright SDP, Blair C, 15 March 2011).

Decision at first instance [2010] FWA 7358 (Bissett C, 24 September 2010).

The appellant argued that there were a number of significant errors of fact in the original decision.

The Full Bench found that there were no errors in the decision-making process on unfair dismissal warranting review on appeal. However, in failing to give adequate reasons for the decision with respect to remedy, there was error such that it was in the public interest to grant permission to appeal. The appeal was allowed and the decision as to remedy was quashed and remitted to the first instance decision-maker.

Misapplication of statutory test

Aperio Group (Australia) Pty Ltd (T/a Aperio Finewrap) v Sulemanovski [2011] FWAFB 1436 (Watson SDP, McCarthy SDP, Deegan C, 4 March 2011), [(2011) 203 IR 18].

Decision at first instance [2010] FWA 9958 and order PR505584 (Ryan C, 30 December 2010).

In deciding the initial application, the Full Bench determined that there had been a failure to properly consider whether there was a valid reason for termination. This misapplication of the statutory test was significant and produced a plainly unjust result. The preservation of public confidence in the administration of justice was a matter of public interest and could be undermined by decisions that were manifestly unjust.

The appeal was allowed, the order quashed, and the matter re-heard.

Interpretation of provisions of the Fair Work Act

Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C, 12 November 2010), [(2010) 199 IR 363].

Decision at first instance [2010] FWA 4817 (Raffaelli C, 12 July 2010).

These were two appeals against a decision determining whether certain dismissals were the result of genuine redundancies.

The Full Bench found that, because these appeals concerned the interpretation of an important section of the Fair Work Act which had not been considered by a Full Bench before, it was in the public interest to grant permission to appeal. However, the Full Bench concluded that the Commission’s decision was open on the evidence and other material before it and did not involve any error in interpretation of the section.

Permission to appeal refused

Significant error of fact established but not in public interest to grant permission to appeal

Qantas Airways Limited v Carter [2012] FWAFB 5776 (Harrison SDP, Richards SDP, Blair C, 17 July 2012), [(2012) 223 IR 177].

Decision at first instance [2011] FWA 8025 and order PR517011 (Spencer C, 25 November 2011).

The employer appealed a decision that there was no valid reason for the employee’s dismissal, that the dismissal was unfair and that the employee be reinstated.

The Full Bench found that the Commission was in error in failing to find that the employer had a valid reason to dismiss the employee. However, permission to appeal was not granted, because the matter turned on its particular facts, and raised no wider issue of principle or of general importance, and no issue of jurisdiction or law.