See Fair Work Act s.604
The following information is limited to providing general guidance for appeals against an order to stop bullying or a decision to refuse to grant such an order.
For information about lodging an appeal, stay orders, appeals directions and the appeals process please refer to the Appeal proceedings practice note.
Note: The examples used in this section do not only refer to anti-bullying matters; 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.
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.
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.
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.
An appeal must be lodged with the Commission within 21 days after the date the decision being appealed was issued. If an appeal is lodged late, an application can be made for an extension to the time limit.
In each appeal, a Full Bench of the Commission needs to determine two issues:
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.
The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.
Some considerations that the Commission may take into account in assessing whether there is a public interest element include:
The public interest test is not satisfied simply by the identification of error or a preference for a different result.
An error of law 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.
An error of fact can exist where the Commission makes a decision that is ‘contrary to the overwhelming weight of the evidence...’.
In considering whether there has been an error of fact, the Commission will consider whether the conclusion reached was reasonably open on the facts. If the conclusion was reasonably open on the facts, then the Full Bench cannot change or interfere with the original decision.
It is not enough to show that the Full Bench would have arrived at a different conclusion to that of the original decision maker. The Full Bench may only intervene if it can be demonstrated that some error has been made in exercising the powers of the Commission.
See Fair Work Act s.606
If the Commission hears an appeal from, or conducts a review of a decision, the Commission may order that the operation of the whole or part of the decision 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:
 Fair Work Act s.604(1).
 See for e.g. Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo  FWCFB 7090 (Watson VP, Kovacic DP, Roe C, 27 October 2015).
J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia FWAFB 9963 (Lawler VP, O’Callaghan SDP, Bissett C, 23 December 2010) at para. 9.
 Fair Work Commission Rules 2013 r 56(2)(a)–(b).
 Fair Work Commission Rules 2013 r 56(2)(c).
 Fair Work Act s.604(2).
 Coal and Allied Mining Services Pty Ltd v Lawler  FCAFC 54 (19 April 2011) at para. 44, [(2011) 192 FCR 78].
 GlaxoSmithKline Australia Pty Ltd v Makin  FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at para. 27, [(2010) 197 IR 266].
 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at pp. 155‒156.