Appeals

See Fair Work Act 2009 ss.400, 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, with the permission of the Commission.[1]

A person who is aggrieved is generally a person who is affected by a decision or order of the Commission and who does not agree with the decision or order. The term can extend beyond people whose legal interests are affected by the decision in question to people with an interest in the decision beyond that of an ordinary member of the public, such as, in some circumstances, a union or an employer association.[2]

In determining whether a person is a 'person aggrieved' for the purposes of exercising a statutory right of appeal, it is necessary to consider the relevant statutory context.[3]

Intervention

There is no provision of the Fair Work Act expressly dealing with intervention however the Commission has used the broad procedural power in s.589(1) to empower it to permit intervention in an appropriate case.[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]

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.

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

The Fair Work Act generally provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so.[7] However in relation to an unfair dismissal matter the opposite is true. Permission to appeal an unfair dismissal decision must not be granted unless the Commission is satisfied that it is in the public interest to do so.

If the error that is alleged is an error of fact, then the person making the appeal must persuade the Full Bench that it is a significant error of fact.[8]

Public interest

The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.[9]

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 decisions so that guidance from a Full Bench of the Commission 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.[10]

The public interest test is not satisfied simply by the identification of error or a preference for a different result.[11]

Error of law

An error of law of law may be a jurisdictional error, which means an error concerning the tribunal'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.[12]

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.[13]

An error of fact can exist where the Commission makes a decision that is 'contrary to the overwhelming weight of the evidence'.[14]

In considering whether there has been an error of fact, the Commission will consider whether the conclusion reached was reasonably open on the facts.[15] If the conclusion was reasonably open on the facts, then the Full Bench cannot change or interfere with the original decision.[16]

It is not enough to show that the Full Bench would have arrived at a different conclusion to that of the original decision maker.[17] The Full Bench may only intervene if it can be demonstrated that some error has been made in exercising the powers of the Commission.[18]

Link to form

• Form F7 – Notice of appeal

All forms are available on the Forms page of the Commission's website.

Permission to appeal granted

Duty to provide adequate reasons

Dianna Smith T/A Escape Hair Design v Fitzgerald [2011] FWAFB 1422 (Acton SDP, Cartwright SDP, Blair C, 15 March 2011), [(2011) 204 IR 305].

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 warranting review on appeal on the decision-making process on unfair dismissal. However, in failing to give adequate reasons for the decision as 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 provisions of the Fair Work Act

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 September 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 in accordance with s.387(a). This misapplication of the statutory test was significant and productive of 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 the 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).

These were appeals from 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