Practice note: Appeal proceedings

2. The Practice Note applies to appeals lodged with the Fair Work Commission.
3. The purpose of the Practice Note is to provide procedural guidance in relation to appeal proceedings. An Appeal Bench or the presiding member may vary the operation of the Practice Note by direction or order.
4. The Practice Note is only intended to provide a general explanation of appeal rights and to set out the procedures followed by the Commission in the listing, hearing and determination of appeals. Appeal rights are provided under the Fair Work Act 2009. Before instituting an appeal, reference should be made to the relevant sections of the Act under which the appeal arises.

5. In this Practice Note:

6. A word or term used in this practice note has the same meaning as defined in the Act or in the Acts Interpretation Act 1901.

7. The appeal process is a means of promoting consistent decision making; ensuring that decisions are made in accordance with the Act and to allow contentious matters to be tested.
8. A person aggrieved by a decision of the Commission may seek permission to appeal against that decision.  The term ‘person aggrieved’ is capable of extending beyond persons whose legal interests are affected by the decision in question and extends to persons with an interest in the decision beyond that of an ordinary member of the public, such as a registered organisation.

    

   See Tweed Valley Fruit Processors Pty Ltd v Ross and Others (1996) 137 ALR 70; Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 599 and Australian Industry Group and Pacific Brands Limited t/a Dunlop Foams [2010] FWAFB 4337.

    

9. An appeal may be instituted against a decision or order made by:

• a single member of the Commission, or
• the General Manager of the Commission (including a delegate of the General Manager) in matters concerning the Fair Work (Registered Organisations) Act 2009.

10. The following extracts from the Act are relevant.

Part 5-1 – Fair Work Commission

Division 3 – Conduct of matters before the FWC

Subdivision E – Appeals, reviews and referring questions of law

604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Fair Work (Registered Organisations) Act 2009;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

Part 3-2 – Unfair dismissal

Division 5 – Procedural matters

400 Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

General

11. The current appeal provisions in the Act are modelled on the appeal provisions contained in the Workplace Relations Act 1996 and its predecessors, and the past jurisprudence in relation to appeals, in particular the decision of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 remains relevant. There needs to be a legitimate reason for the appeal as the Full Bench may only exercise its powers if it identifies some error on the part of the primary decision-maker.
12. Where the original decision has involved the exercise of a significant level of discretion it is not enough that the Full Bench would have reached a different conclusion. The Full Bench may only intervene on the limited ground that some error has been made in exercising the discretion. An illustrative list of such errors was set out in House v The King (1936) 55 CLR 499 at 505, namely that the decision-maker has:

• acted upon a wrong principle
• been guided by irrelevant factors
• mistaken the facts, or
• failed to take some material consideration into account.

A further illustrative list of errors which may be made by a Tribunal is set out in Craig v The State of South Australia (1995) 184 CLR 163 and approved in Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 206 CLR 323 and Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531.

The Full Bench may also intervene on the basis that the decision subject to appeal is unreasonable or plainly unjust.

13. In each appeal the Full Bench needs to determine two issues:

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

14. In considering whether permission to appeal should be granted, the Full Bench will consider whether it is in the public interest to grant permission to appeal. The ‘public interest’ is not defined in the Act, but it generally refers to a benefit or advantage to the whole community, as opposed to an individual. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 a Full Bench of the Tribunal identified some of the considerations that may attract the public interest:

15. Subject to the appellant demonstrating an arguable case of appealable error, the Commission has a broad discretion as to the circumstances in which it can grant permission to appeal. Some examples of considerations which have traditionally been adopted in granting leave include:

• that the decision is attended with sufficient doubt to warrant its reconsideration
• that the Commission at first instance may have exceeded its jurisdiction, and
• that substantial injustice may result if leave is refused.

CFMEU v AIRC 84 IR 314 at 333; Wan v AIRC 116 FCR 489; Wright v Australian Customs Service 120 IR 346.

Unfair dismissal appeals

16. The general requirements relating to appeals are modified in the case of appeals against unfair dismissal decisions. If the error that is alleged is an error of fact, then the appellant must persuade the Full Bench that it is a significant error of fact [see s.400 of the Act]. Further, s.400(1) provides that permission to appeal from an unfair dismissal decision must not be made unless the Commission considers that it is in the public interest to do so.
17. In Coal & Allied Mining Services Pty Ltd v Lawler and others, (2011) 192 FCR 78 at paragraph 43 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as 'a stringent one'. The Tribunal must not grant permission to appeal unless it considers that it is 'in the public interest to do so'.

Form

18. A party seeking to institute an appeal against a decision of a Commission Member (or a person exercising a delegation from the President or the General Manager) must do so by lodging a Notice of Appeal in accordance with Form F7.

Appeal books

19. The appellant must also lodge three copies of an appeal book containing:

• any order made by the Commission
• the statement of the reasons for the decision
• the transcript of the evidence and argument in the proceedings from which the appeal is brought, or the relevant extract from the transcript (it is the appellant’s responsibility to obtain a copy of the transcript for inclusion in the appeal book), and
• each document that was an exhibit or written submission in the proceedings and relates to the grounds of appeal set out in the notice.

The appellant must number the pages of the appeal book.

The appeal book must be lodged within 7 days of the lodgment of the notice of appeal.

[See Rule 56(3)]

20. The Commission may waive in whole or in part the requirement for the appellant to provide appeal books if the appellant makes a written request before the time at which the appellant is required to lodge the appeal books [see Rule 6].

Time limits

21. The Notice of Appeal (Form F7) must be lodged with the Commission within 21 days after the date the decision being appealed was issued [see Rule 56(2)]. If a Notice of Appeal is lodged later than 21 days after the decision under appeal was issued, application should be made for an extension of time within which to institute the appeal. To do so the appellant needs to indicate this in the Notice of Appeal (Form F7) [see Rule 56(2)].
22. Time limits of the kind in Rule 56(2) are not simply extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and the 21 day period specified in the rules will only be extended where there are good reasons for doing so. The following authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2):

• whether there is a satisfactory reason for the delay
• the length of the delay
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended, and
• any prejudice to the respondent if time were extended. 

Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; SPC Ardmona Operations Ltd v Esam and Organ, (2005) 141 IR 338 and Tokoda v Westpac Banking Corporation, [2012] FWAFB 3995.

Service requirements

23. On lodging a Notice of Appeal, the appellant should, as soon as practicable, serve a copy of the Notice of Appeal on the other parties to the proceedings from which the appeal is brought.

Self-representation

24. The appellant or the respondent can represent themselves and are not required to be represented. However, depending on the complexity of the issues raised in the appeal it may be advisable to obtain professional advice or representation.

Lawyers and paid agents

25. A person may be represented in a matter before the Commission (including by making an application or submission on behalf of the person) by a lawyer or paid agent only with the permission of the Commission [see s.596(1) of the Act].
26. The Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter if:

• it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter
• it would be unfair not to allow the person to be represented because the person is unable to represent themself effectively, or
• it would be unfair not to allow the person to be represented taking into account fairness between the person and other parties to the matter.

[See s.596(2) of the Act]

27. A person does not need to seek permission to be represented by:

• an employee or officer of the person
• an employee or officer of a registered organisation, association of employers or peak council, or
• a bargaining representative.

[See s.596(3) of the Act]

28. An application can be made to the Commission to stay all or part of a decision or order as part of an appeal [see s.606 of the Act]. To do so the appellant needs to indicate this in the Notice of Appeal (Form F7).
29. An order staying the operation of all or part of the decision under appeal may be made by a Presidential Member of the Commission and will operate until a decision or further order is made by the Full Bench hearing the appeal. For example: if a Commission Member had awarded the payment of compensation a stay order may have the effect that payment would not be required until after the Full Bench determined the decision under appeal.
30. If permission to appeal is refused or the appeal is dismissed then the stay order will be discharged and the amount of compensation originally ordered will have to be paid. A stay order may also be subject to certain conditions. For example, an order that a party pay an amount of compensation may be stayed provided that the amount of compensation is paid into an interest bearing account.
31. Generally a hearing for a stay order will be listed within 7 days from the lodgment of the appeal.
32. Some recent examples of appeals where stay orders have been granted are: Virgin Australia International Airlines Pty Ltd T/A Virgin Australia v David Taleski [2013] FWC 624 and GM Holden Ltd v Rodney Symonds, [2013] FWC 332.

Listing of appeals

33. Generally an appeal will be listed for hearing within 12 weeks after the lodgment of the appeal.
34. With the consent of the parties, an appeal may be conducted without holding a hearing if it appears to the Full Bench that the appeal can be adequately determined on the papers and without parties making oral submissions at a hearing [see s.607(1) of the Act].

Expedited appeals

35. Where an application to appeal a decision of the Commission relates to a decision which ought be dealt with urgently, the appeal may be heard more quickly than if it were assigned to an appeal roster.
36. Where a party to an appeal wishes to have their appeal heard urgently that party should request in writing that the appeal be expedited, preferably at the time of lodging the appeal, by completing question 6 in the Notice of Appeal (Form F7), or as soon as possible after the appeal has been lodged. Examples of applications to appeal which may need to be expedited include appeals of decisions that relate to protected industrial action and bargaining disputes, and other matters where time is of the essence.

Composition of Full Bench

37. A Full Bench consists of at least three Commission Members, including at least one Presidential Member. Full Benches are constituted by the President [see s.618 of the Act].

Powers of Full Bench

38. The Full Bench will normally deal with the appeal on the basis of the evidence in the proceedings which led to the decision subject to the appeal. However it may admit further evidence or take into account any other information or evidence where appropriate [see s.607(2) of the Act].
39. The Act confers a discretion on a Full Bench hearing an appeal to admit further evidence and take into account any other information or evidence (s.607(2) of the Act). The principles established in Akins v National Australia Bank [1994] 34 NSWLR 155 at 160 are relevant to when the discretion to admit new evidence may be exercised. In that case the Court noted that while it is not possible to formulate a test which should be applied in every case, in general these three principles should be applied:

• it must be shown that the evidence could not have been obtained with reasonable diligence for use at the proceedings at first instance
• the evidence must be such that there must be a high degree of probability that there would be a different decision, and
• the evidence must be credible. 

40. In a number of Full Bench decisions, (including JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963, and Abigroup Contractors Pty Ltd v Mr John Crema, Mr Paul Edwards, Ms Christine Comley and Mr Ray Allan [2012] FWAFB 8453), the Commission has observed that the principles governing the admission of fresh evidence on appeal in the Court provide a useful guide to the exercise of the Commission’s discretion in s.607(2) of the Act.
41. The Full Bench may do any of the following in relation to the appeal:

• confirm, quash or vary the decision
• make a further decision in relation to the matter that is the subject of the appeal
• refer the matter that is the subject of the appeal to a Commission Member for further action. 

[See s.607(3) of the Act]

Making decisions

42. A decision of a majority of the members on the Full Bench prevails; however, if there is no majority, the decision of the Commission Member who has seniority prevails [see s.618 (3)–(4) of the Act].

Adjournments

43. A Full Bench appeal roster has been instituted in order to ensure that appeals are heard in a timely fashion. For this reason, adjournments will rarely be granted. 
44. Any request for an adjournment of an appeal should be made as soon as possible after a party receives the Notice of Listing of the appeal. The request should be made to the presiding Member of the Full Bench. The request should be in writing and provide a full explanation as to why the adjournment is sought.
45. A copy of the adjournment request should also be sent to any other party to the appeal.

Direction to file written submissions

46. Once a date is fixed for the hearing of an appeal the appellant and the respondent will be directed to file and serve outlines of submissions or witness statements that might be presented on appeal, on or before particular dates prior to that hearing.

Format of submissions

47. The first page of a submission that is lodged with the Commission must be headed in the manner set out in Attachment 1 (docx).
48. Generally, outlines of submissions should:

• clearly identify the grounds on which permission to appeal is sought and identify the legal or factual errors in the decision
• list any authorities upon which you wish to rely
• in the case of unfair dismissal decisions, the appellant must clearly identify why it is in the public interest to grant permission to appeal and identify any significant error(s) of fact in the decision subject to appeal
• be generally limited to less than 10 pages
• be produced on A4 size paper, and
• have type which is double spaced.

49. Each party must lodge their outline of submissions with the Commission either:

• by email to the chambers email listed on the notice of listing, or
• in person or by post, in which case, they must lodge 3 copies of the outline of submissions in hard copy.

Note: In circumstances where an appeal deals with complex issues of law or fact the appellant may apply to vary the standard directions in the notice of appeal. Where the respondent seeks to vary the standard directions they may apply in writing as soon as possible after being notified of the appeal.

Filing dates

50. Generally, the appellant’s outline of submissions will be required to be filed with the Commission at least 8 weeks before the scheduled hearing date and the respondent’s outline will be required to be filed at least 5 weeks before the hearing date. The following chart provides a general outline of the common timing of the appeal process:

Other directions

51. The Full Bench assigned to hear an appeal may make further directions regarding the filing of submissions or materials in relation to the appeal and may vary the standard directions set out above.

52. Generally the hearing of an appeal proceeds in the following way: the appellant is given an opportunity to present its case on appeal; the respondent is given an opportunity to respond to that case; and the appellant is then given an opportunity to reply to the respondent’s case.

53. Where a Full Bench has allowed the admission of further evidence in an appeal, the Full Bench may determine that the evidence from the appellant and the respondent should be presented before hearing the submissions of the parties.

54. At the conclusion of the proceedings, the Full Bench will either deliver its decision in the appeal or announce that the decision is reserved. Where a decision is reserved, it will generally be given in writing and within 8–12 weeks of the final hearing day or the day on which any further submissions or materials are required to be filed by the parties.

55. For further information refer to:

• the Fair Work Commission Rules 2013, and
• the Full Bench decisions search on the Commission’s website.

• Appeal proceedings attachment 1 – Form of submissions (docx)
• Appeal proceedings attachment 1 – Form of submissions (pdf)