Appeals of Commission decisions

A person who is aggrieved by a decision or order made by a Member or the General Manager can apply to appeal that decision or order. Appeals from a decision of the General Manager are heard by a single Member. All other appeals are heard by a Full Bench of the Commission, which is generally made up of three Members, one of whom is a Presidential Member.

The Full Bench will usually determine two issues: whether permission to appeal should be granted, and whether there was an error in the original decision. The Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so (s.604(2) of the Fair Work Act).

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. 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 may have exceeded its jurisdiction in the original decision, and that substantial injustice may result if leave is refused.

A higher standard applies to appeals from decisions in unfair dismissal matters (s.400 of the Fair Work Act). 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. Further, s.400(1) of the Fair Work Act 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.

If permission to appeal is granted, and the appeal is upheld, a Full Bench may:

  • 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 Member for further action.

Permission to appeal

The Commission’s permission to appeal process applies to appeals for unfair dismissal matters and general protections consent arbitration cases.

Under the process, a Full Bench determines whether to grant permission to appeal as a threshold issue, so that parties do not incur the costs of preparing and filing submissions on the merits of an appeal that may not proceed.

When a matter is allocated to the process, all parties are informed that the question of permission to appeal will be determined as a threshold issue. The appellant must file a short, written submission in support of the permission application but does not need to file a lengthy submission addressing the merits of the appeal. The respondent is not required to file any written submissions in response.

In 2017–18, the Commission heard 95 applications for permission to appeal. Of these, 65 per cent were refused, as shown in Table 36.

Table 36: Appeals—permission to appeal outcomes
  No. of matters Percentage of matters
Outcome 2017–18 2016–17 2015–16 2014–151 2017–18 2016–17 2015–16 2014–151
Permission not granted 62 80 107 52 65 73 78 74
Permission granted 33 29 26 18 35 27 19 26
Total 95 109 1372 70 100 100 972 100

1 The 2014–15 data is for six months only, from 1 January 2015 to 30 June 2015.

2 Four matters were still pending at the end of the 2015–16 reporting period. Of the 137 appeal applications made in 2015–16, 133 (97 per cent) were finalised in 2015–16.

Determination of appeals

In 2017–18, Full Benches of the Commission determined a total of 169 appeal matters (including permission to appeal matters), as shown in Table 37. This is a 13 per cent decrease from the total of 195 in 2016–17. The proportion of appeals upheld increased in 2017–18, to 36 per cent of finalised appeals from 32 per cent in 2016–17.

Just as unfair dismissal applications are the most common type of application lodged with the Commission, appeals of unfair dismissal decisions are the most common type of appeal. Unfair dismissals accounted for 51 per cent of all appeals finalised in 2017–18. Of the 86 unfair dismissal appeals heard in 2017–18 (including permission to appeal matters), 30 per cent were upheld. This represented an increase compared to previous reporting periods, with only 15 per cent of unfair dismissal appeals upheld in 2016–17 and 21 per cent in 2015–16.

Appeals concerning the approval of enterprise agreements made up the second largest number of matters, increasing to 18 per cent of decisions in 2017–18 from 11 per cent in 2016–17. This was a change from results in previous years, in which appeals concerning applications to deal with a dispute (under s.739) were consistently more common. Appeals of that type decreased to 14 per cent of decisions in 2017–18, from 15 per cent in 2016–17.

In 2017–18, of the decisions issued concerning agreement approvals, 65 per cent of appeals were upheld, compared with 73 per cent in 2016–17. Of the decisions concerning disputes, 29 per cent of appeals were upheld in 2017–18, compared with 47 per cent in 2016–17.

Table 37: Appeals—appeal outcomes
  No. upheld No. dismissed Total appeal decisions
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
Unfair dismissals 26 15 29 32 60 87 110 102 86 102 139 134
General protections 3 1 2 0 9 12 10 0 12 13 12 0
Agreement approvals 20 16 18 8 11 6 21 11 31 22 39 19
FWA s.739 disputes 7 14 14 11 17 16 29 22 24 30 43 33
Industrial action 2 3 6 1 0 1 2 5 2 4 8 6
Modern awards 0 0 0 1 0 0 0 0 0 0 0 1
Bargaining disputes 0 4 3 3 0 2 8 5   6 11 8
Right of entry 1 1 3 4 2 3 5 5 3 4 8 9
Anti-bullying 0 1 0 0 4 1 4 0 4 2 4 0
Miscellaneous 2 7 3 6 5 5 1 18 7 12 4 24
Total 61 62 78 66 108 133 190 168 169 195 268 234

FWA = Fair Work Act

Timeliness

The Commission has established performance benchmarks concerning timeframes for the hearing of appeals and handing down reserved decisions in appeal matters.

Get  more information about the Commission’s performance against these benchmarks.

Appeals of Commission decisions

Judicial reviews

Parties who do not agree with the outcome of a matter heard and determined by the Commission may be able to seek a judicial review of the decision.

In 2017–18, the Federal Court of Australia and High Court of Australia determined 13 matters on review from the Commission, a slight increase from 10 matters in 2016–17 as shown in Table 38.

Table 38: Appeals—judicial review decisions
Outcome 2017–18 2016–17 2015–16 2014–15
Upheld 4 2 4 5
Dismissed 9 8 11 10
Total 13 10 15 15