Appeals

See Fair Work Act s.604

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.[277]

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.[278]

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.[279]

Intervention

There is no provision of the Fair Work Act expressly dealing with the ability of a person to intervene in a case if they are not a party. The Commission may use the broad procedural power in s.589(1) to permit a person to participate in appropriate cases. There are also limited rights for government ministers to make submissions in certain cases in the public interest.[280]

Time limit for appeal – 21 days

A Notice of Appeal must be lodged with the Commission within 21 days after the date of the decision being appealed.[281] If an appeal is lodged late, application also needs to be made for an extension of time to lodge the appeal.[282] An extension of time is not a right. The person seeking an extension of time will need to persuade the Commission that additional time is warranted in the circumstances.

Related information

• For calculating 21 days - What is a day?

Considerations

An appeal under s.604 of the Fair Work Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker.

There is no right to appeal a Commission decision relating to an application to stop bullying or sexual harassment (or both) at work. An appeal may only be made with the permission of the Commission.[284]

In such appeals, a Full Bench of the Commission needs to determine 2 key issues:

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

Permission to appeal

Permission granted in the public interest

The Fair Work Act provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest.[285] The ‘public interest’ is not defined in the Fair Work Act, but it is generally understood to refer to a benefit or advantage to the whole community, as opposed to an individual.

The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.[286]

Some considerations that may attract the public interest include where:

• a matter raises issues of importance and general application
• there is a diversity of decisions so that guidance from an appellate court is required
• the original decision manifests an injustice or the result is counter intuitive, or
• the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[287]

Permission to appeal will usually only be granted if there is an arguable case of appealable error, because an appeal cannot succeed without it. Even if a relevant error is found, or a decision-maker might prefer a different result to the original decision-maker, it might not be in the public interest to grant permission to appeal and the appeal might not succeed.[288] An appealable error is one that is material to the outcome of the case. Hearing and determining an appeal must also have a practical purpose – this is known as ‘utility’.[289]

It is generally considered to be in the public interest to discourage appeals from preliminary or procedural rulings.[290]

Permission granted on other discretionary grounds

The Commission can grant permission to appeal ‘on conventional grounds’ (not limited to those that are in the public interest) if it is considered appropriate in the circumstances of a particular case.[291]

The grounds for granting permission to appeal other than in the public interest are not specified. Considerations that have traditionally been seen as justifying the grant of permission to appeal include where a decision is attended with sufficient doubt to warrant its reconsideration or where substantial injustice may result if permission to appeal is refused.[292]

Grounds for appeal

Appeals under s.604 of the Fair Work Act exist for the correction of appealable error. Their purpose is not to allow an unsuccessful party a further opportunity to argue their case in the absence of error.[293]

A Full Bench of the Commission must identify some error of law or fact in the decision at first instance before it can intervene.[294] An error of law may be jurisdictional (when the Commission makes a decision or order that it does not have power to make) or relate to any question of law that arises for decision in a matter. An error of fact must be material to the outcome of the case. Not all errors of fact will warrant correction on appeal.

The approach of a Full Bench to appeals depends on the nature of the decision under appeal:[295]

Correctness standard

The correctness standard applies where the ‘legal criterion applied or purportedly applied by the primary [decision-maker] to reach the conclusion demands a unique outcome’.[296] The correctness standard applies to errors of law or fact in circumstances where, by the nature of the fact or conclusion, only one view is legally possible.

For example, a Full Court of the Federal Court has said that the question of whether or not a worker is an ‘employee’ within the meaning of the Fair Work Act involves the application of a legal standard to a given set of facts. The question of whether particular facts satisfy that legal standard is generally a question of fact, and therefore any appeal of that conclusion is an appeal on a question of fact.

However, as there is only one legally correct answer – either the worker is in an employment relationship or they are not – the correctness standard applies.[297]

Where the correctness standard applies, the Commission is concerned with the correctness of the conclusion reached in the decision at first instance, not whether that conclusion was reasonably open.[298] The task of the appellant is to demonstrate that the conclusion in the decision was wrong, not that there was some error in the decision-maker’s reasoning process.[299] In determining the appeal, the Full Bench will substitute its own conclusion for that of the original decision-maker if it finds that their conclusion was not correct.[300]

Discretion standard

In contrast, where the decision under appeal is discretionary in nature, a successful appeal will usually require the appellant to demonstrate that the original decision-maker’s discretion was not exercised correctly. The discretion standard applies to the review of evaluative conclusions, such as where the Commission must “be satisfied” of something before it can make a decision. These are matters where the Commission has some latitude about the decision to be made because the decision under appeal is one that ‘tolerates a range of outcomes’, on which ‘reasonable minds may differ’. [301]

The correctness of a discretionary decision can only be challenged by showing error in the decision-making process.[302]  If permission to appeal is granted, the Full Bench will consider whether the conclusion reached by the original decision-maker was reasonably open to them on the facts.[303] If the conclusion was reasonably open on the facts, the Full Bench cannot change or interfere with the original decision, for example, by substituting its own views for the views of the original decision-maker.[304] It is not enough that a Full Bench would have arrived at a different conclusion to that of the decision-maker at first instance.[305] The Full Bench may only intervene in such cases if it can be demonstrated that an appealable error has been made in exercising the powers of the Commission.[306]

The High Court decision of House v The King[307] describes appealable errors of this kind. They include where a decision-maker:

• acted upon a wrong principle
• was guided by irrelevant factors
• mistook the facts, or
• failed to take some material consideration into account.[308]

A Full Bench of the Commission may also intervene on the basis that the decision under appeal was, on the facts, unreasonable or plainly unjust[309] or ‘contrary to the overwhelming weight of the evidence’.[310] There is a high threshold for intervening in a decision on this basis.

Appealable error will not be demonstrated simply because a decision-maker at first instance failed to give a particular matter ‘sufficient weight’ or failed to give it ‘proper regard’, unless the failure was, in substance, a failure by the decision-maker to exercise their discretion properly.[311]

Link to application form

• Form F7 – Notice of Appeal

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

Permission to appeal granted – Jurisdiction of the Commission

Hempel v Northern Territory Air Services Pty Ltd [2021] FWCFB 3707 (Hatcher VP, Cross DP, Lee C, 2 July 2021).

Decision at first instance [2021] FWC 886 and order PR727109 (Bissett C, 4 March 2021).

Facts

Mr Hempel appealed a decision to dismiss his unfair dismissal application. The Commission found at first instance that the respondent was a small business employer (with fewer than 15 employees) and that Mr Hempel had not served the minimum employment period of one year. As a result, he was not protected from unfair dismissal.

Outcome

Permission to appeal was granted on some of the appeal grounds in the public interest, as the appeal had substantive merit and the decision had deprived Mr Hempel of the opportunity to obtain an unfair dismissal remedy.

At issue in the appeal was whether a co-worker was an employee or contractor of the respondent. If the co-worker was an employee, the respondent would not be a small business employer. Because this issue was determinative of whether the Commission had jurisdiction to deal with Mr Hempel’s application, the task of the Full Bench was to decide whether the decision at first instance was correct.

On appeal, the Full Bench found the co-worker was an employee of the respondent and the respondent was not a small business employer. This meant Mr Hempel had served the relevant minimum employment period and he was eligible to apply for an unfair dismissal remedy.

Relevance

This case is an example of how the ‘correctness standard’ applies.  Whether a person is an employee or independent contractor involves the application of a legal standard to a given set of facts. Although the answer requires an evaluation, it is not ‘an exercise in, or akin to, discretionary decision-making’. The person can be ‘either an employee or independent contractor’. That is, only one of these two possibilities will be legally correct in each case.

Where the correctness standard applies, the appellant’s task is to demonstrate that the decision at first instance was wrong, not that there was some error in the decision-maker’s reasoning process.

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 (that is, suspended from taking effect) by making a stay order.

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