Fair Work Commission

Introduction

This page contains general information about appeals. Pages in this section also provide information about Appeal Benches and court reviews.

Before completing and lodging a notice of appeal, you should read the Fair Work Commission’s Practice note – Appeal proceedings. It provides detailed information about:

• lodging a notice and preparing an appeal book
• representing yourself or engaging a representative
• stay orders
• directions (the process to be followed by the parties), and
• procedures followed by the Commission.

The appeal process

A person who is aggrieved by a decision or order made by a Member of the Commission can apply to appeal that decision or order. There are time limits for appeals, so you need to act promptly.

There is no automatic right to appeal. Parties must seek permission to appeal. It is important to note that in the case of appeals against unfair dismissal and general protection arbitration decisions there are additional requirements in relation to permission to appeal. For more information see When permission is granted below.

Appeals are heard by a Full Bench of the Commission (referred to as an Appeal Bench). An Appeal Bench is generally made up of 3 Members, 1 of whom must be a Presidential Member.

Two issues must usually be determined in all appeals:

1. whether permission to appeal should be granted, and
2. whether there was an error in the original decision.

If permission to appeal is granted, the Appeal Bench may do any of the following in relation to the appeal:

• confirm, quash (suppress) or vary the decision
• make a further decision in relation to the matter that is being appealed
• refer the matter being appealed to a Commission Member for further action.

Who can appeal

You can apply to appeal a decision or order if you were a party in the case, and if the decision or order was made:

• by a single member of the Commission, or
• under the Fair Work (Registered Organisations) Act 2009 by:
  • (i) the General Manager (including a delegate of the General Manager); or
  • (ii) the Registered Organisations Commissioner (including a delegate of the Commissioner), or
• by delegation in an application for an entry permit under s.512 of the Fair Work Act 2009

Time limit to appeal

Appeal applications (the Commission’s Form F7) must be lodged within 21 days of the date the decision or order being appealed was issued.

If lodging a notice after the 21 days, you must also apply for an extension of time. This can be done on the same form (Form F7).

Note that:

• you must include reasons why your extension of time request should be granted, and
• extension of time requests are not always granted.

Lodging a notice of appeal

A notice of appeal is made using the Commission’s Form F7 – Notice of appeal.

You need to complete all parts of the form, including those about requesting an extension of time (if relevant) and seeking to stay (stop) the operation of the decision or order (in whole or in part) that you are applying to appeal.

The completed form can then be lodged by email or fax sent to one of our Commission offices.

You must also lodge an electronic copy of your appeal book (see below for more information) within 7 days of lodging the appeal.

You also need to serve a copy of the Form F7 and the appeal book on the other parties to your proceedings. The parties are those individuals and organisations directly involved in the case.

Information about serving copies of documents appears in the Fair Work Commission Rules 2013.

Appeal book

An appeal book is a document containing:

• any order made by the Commission relating to the matter
• the decision, and statement of the reasons for decision (as published by the Commission or separately)
• transcript of the proceedings for the matter being appealed, or a relevant extract from the transcript, 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.

You must number the pages in your appeal book.

What happens next

A date will be fixed for the hearing of the appeal. You (and the other parties) will be directed to file and serve outlines of submissions that will be presented at the hearing of the appeal, on or before particular dates before the hearing. 

The below information provides a general indication of the relevant timeframes, though these may differ case to case:

• Appeal matters are generally listed for hearing within 12 weeks of the Commission receiving the application
• Appeal matters in the permission to appeal roster will generally be listed in the month following the Commission's receipt of the application 

If the application included a request to stay (stop) all or part of a decision or order, a stay order hearing will be listed within 7 days of when the appeal was lodged.

The Appeal Bench will normally deal with an appeal on the basis of the evidence in the proceedings which led to the decision or order that is being appealed. But in some circumstances the Appeal Bench may accept further evidence.

When permission is granted

The Commission must decide whether or not to grant permission to appeal.

Generally the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so, and may otherwise grant permission to appeal.

However, in an appeal related to unfair dismissal and general protections arbitration decisions, permission to appeal can only be granted if the Commission considers that it is in the public interest to do so.

Before you start

Before completing and lodging a notice of appeal, you should read the Commission’s Practice note – Appeal proceedings. It provides detailed information about:

• lodging a notice and preparing an appeal book
• representing yourself or engaging a representative
• stay orders
• directions (the process to be followed by the parties), and
• procedures followed by the Commission.

Outcomes

Outcomes of appeals determined by the Commission, including statistics on permission to appeal being granted and refused, can be found in our Annual reports.

Parties who do not agree with the outcome of an appeal heard by the Commission may apply to the Federal Court of Australia for a judicial review.