Go to top of page

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 2018–19, the Commission heard 87 applications for permission to appeal. Of these, 64 per cent were refused, as shown in Table 34.

Table 34: Appeals – permission to appeal outcomes

No. of matters

Percentage of matters

Outcome

2018–19

2017–18

2016–17

2015–16

2018–19

2017–18

2016–17

2015–16

Permission not granted

56

62

80

107

64

65

73

78

Permission granted

31

33

29

26

35

35

27

19

Total

87

95

109

137

992

100

100

971

  1. 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.
  2. One matter was still pending at the end of the 2018–19 reporting period.

Determination of appeals

In 2018–19, Full Benches of the Commission determined a total of 156 appeal matters (including permission to appeal matters), as shown in Table 35. This is an 8 per cent decrease from the total of 169 in 2018–19. The proportion of appeals upheld increased in 2018–19, to 40 per cent of finalised appeals from 36 per cent in 2017–18.

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 45 per cent of all appeals finalised in 2018–19. Of the 70 unfair dismissal appeals heard in 2018–19 (including permission to appeal matters), 29 per cent were upheld. This is consistent with the previous reporting period when 30 per cent of unfair dismissal appeals were upheld but an increase compared with 2016–17 when only 15 per cent were upheld.

Appeals concerning the approval of enterprise agreements made up the second-largest number of matters, decreasing to 15 per cent of decisions in 2018–19 from 18 per cent in 2017–18. The third-largest number of matters was applications to deal with a dispute (under s.739) consistent with the previous year. Appeals of that type decreased to 13 per cent of decisions in 2018–19, from 14 per cent in 2017–18.

In 2018–19, of the decisions issued concerning agreement approvals, 67 per cent of appeals were upheld, compared with 65 per cent in 2017–18. Of the decisions concerning disputes, 52 per cent of appeals were upheld in 2018–19, an increase compared to 29 per cent in 2018–19.

Table 35: Appeals – appeal outcomes

No. upheld

No. dismissed

Total appeal decisions

Matter type

2018–19

2017–18

2016–17

2015–16

2018–19

2017–18

2016–17

2015–16

2018–19

2017–18

2016–17

2015–16

Unfair dismissals

20

26

15

29

50

60

87

110

70

86

102

139

General protections

3

3

1

2

7

9

12

10

10

12

13

12

Agreement approvals

16

20

16

18

8

11

6

21

24

31

22

39

FWA s.739 disputes

11

7

14

14

10

17

16

29

21

24

30

43

Industrial action

4

2

3

6

1

0

1

2

5

2

4

8

Modern awards

0

0

0

0

0

0

0

0

0

0

0

0

Bargaining disputes

2

0

4

3

1

0

2

8

3

0

6

11

Right of entry

0

1

1

3

0

2

3

5

0

3

4

8

Anti-bullying

1

0

1

0

4

4

1

4

5

4

2

4

Miscellaneous

5

2

7

3

13

5

5

1

18

7

12

4

Total

62

61

62

78

94

108

133

190

156

169

195

268

FWA = Fair Work Act

Timeliness

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

Information about the Commission’s performance against these benchmarks can be found in the Timeliness benchmarks section.

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 2018–19, the Federal Court of Australia and High Court of Australia determined 12 matters on review from the Commission, consistent with 2017–18, as shown in Table 36.

Table 36: Appeals – judicial review decisions

Outcome

2018–19

2017–18

2016–17

2015–16

Upheld

2

3

2

4

Dismissed

10

9

8

11

Total

12

12

10

15

Note: Results from previous years may change between reporting periods as matters are resolved at the different levels of the court hierarchy.