Appeals

See Fair Work Act 2009 s.604

Note:  The examples used in this section do not only refer to enterprise agreements, they also include decisions related to other types of matters heard by the Fair Work Commission. These examples have been used because they help explain the principles behind the appeal process.

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

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]

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 Fair Work Act provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so.[7]

Public interest

The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.[8]

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 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.[9]

The public interest test is not satisfied simply by the identification of error or a preference for a different result.[10]

Grounds for appeal

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.[11]

Error of fact

An error of fact can exist where the Commission makes a decision that is 'contrary to the overwhelming weight of the evidence...'.[12]

In considering whether there has been an error of fact, the Commission will consider whether the conclusion reached was reasonably open on the facts.[13] If the conclusion was reasonably open on the facts, then the Full Bench cannot change or interfere with the original decision.[14]

It is not enough to show that the Full Bench would have arrived at a different conclusion to that of the original decision maker.[15] The Full Bench may only intervene if it can be demonstrated that some error has been made in exercising the powers of the Commission.[16]

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

Interpretation and misapplication of provisions of the Fair Work Act

McDonald's Australia Pty Ltd [2010] FWAFB 4602 (Watson VP, Kaufman SDP, Raffaelli C, 21 July 2010).

This decision involved an appeal against the decision of the Commission not to approve an enterprise agreement. The Full Bench determined that the Commission had misstated relevant tests in the Fair Work Act and misapplied relevant provisions central to the decision not to approve the agreement. On this basis, permission to appeal was granted and the original decision quashed.

Public interest

Re G.J.E. Pty Ltd [2013] FWCFB 1705 (Acton SDP, Smith DP, Ryan C, 3 April 2013).

This decision involved an appeal against a decision of the Commission not to approve an enterprise agreement. The employer had sought approval for the enterprise agreement on the basis that the employees were award free. The Commission disagreed, determining that the employees were covered by the General Retail Award 2010. On that basis, the agreement could not be approved because it did not pass the better off overall test.

The Full Bench considered that the appeal raised general issues regarding the coverage of modern awards and on that basis was satisfied that it was in the public interest to grant permission to appeal. However, the Full Bench was not satisfied that the Commission's decision was affected by error, and confirmed the original decision.

Misapplication of provisions of Fair Work Act

Aperio Group (Australia) Pty Ltd (t/as Aperio Finewrap) v Sulemanovski [2011] FWAFB 1436 (Member/s, dd Month yyyy).

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

The Full Bench determined that, in deciding the application at first instance, 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

No error in findings of fact or exercise of discretion

Cotton On Group Services Pty Ltd v National Union of Workers [2014] FWCFB 8899 (Watson VP, Gostencnik DP, Bissett C, 23 December 2014).

Cotton On applied for permission to appeal a decision of the Commission to make a majority support determination regarding Cotton On employees.

The Full Bench was required to consider whether the Commission had erred in finding that the group of employees covered by the majority support determination was 'fairly chosen'. The Full Bench was satisfied that Cotton On had not established any error of fact or in exercise of discretion. Accordingly, permission to appeal was 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.

See Fair Work Act s.606

The Commission may order that the operation of the whole or part of the decision pending the determination of the appeal be stayed by making a stay order.

The stay order can be made on any terms and conditions that the Commission considers appropriate, until a decision in relation to the appeal or review is made, or the Commission makes a further order.

If a Full Bench is hearing the appeal or conducting the review, a stay order in relation to the appeal or review may be made by:

• the Full Bench
• the President
• a Vice President, or
• a Deputy President.