How to appeal a Fair Work Commission decision – Employment Litigation/ Tribunals


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If you have participated in a Fair Work Commission
(‘FWC’) hearing about an employment law issue and you are unsatisfied
with the result, you might wish to appeal. An appeal of a decision
of the Fair Work Commission is normally heard by the Full Bench of
the Fair Work Commission. This means that three members of the
Commission will hear the matter and consider the appeal before
making their own decision.

Under what grounds can I appeal a Fair Work Commission
decision?

Grounds for appealing a Fair Work Commission decision could be
things like:

  • The Commission made a mistake in its application of the
    law

    This might mean that the law was applied incorrectly or the
    Commission did not have the power to make the decision.

  • The Commission made an error of fact. This might mean that the
    Commission understood the parties’ case incorrectly.

Grounds may also be that the Commission failed to take into
account relevant information or that the Commission relied on
irrelevant information when making its decision.

The process for appealing a Fair Work Commission decision

The first step in appealing a Fair Work Commission decision is
to seek leave (permission) to appeal. This is done by submitting a
notice of appeal with the FWC. The second step is to prepare an
appeal book which contains all the relevant material about the
initial hearing. The final stage of an appeal is the hearing before
the Full Bench if required. Below, we go through each of these
stages in more detail.

Notice of appeal

The Fair Work Commission requires parties to seek permission to
appeal a decision they are not happy with, within 21 days of the
Commission’s decision. Permission is sought through a notice of
appeal.

A notice of appeal must contain the following information:

  • The name and contact details of the respondent to the appeal
    (the other party);

  • The Commission’s reference number (matter number) for the
    original case;

  • The Member or delegate of the Commission who made the original
    decision; and

  • The date of the original decision.

A person appealing (the Appellant) must show the Commission why
they believe it is in the public interest for the Commission to
grant permission to appeal.

The Appellant will also need to set out reasons or
‘grounds’ for appeal (as discussed above).

In their application, the Appellant may ask the Commission for a
‘stay’ of the original decision. A stay will prevent the
original decision from being enforced while the appeal is heard. If
you apply for a stay, the Commission will try to list a hearing
about that part of your application within 7 days of receipt.

Once your appeal notice is ready, you must lodge it with the
Fair Work Commission. This can be done by email, post or in person
at a Commission office.

Appeal book

Once the Appellant has submitted their notice of appeal to the
Fair Work Commission, they have seven days to create and submit an
appeal book.

An appeal book must contain all the documents from the
Commission which are relevant to the appeal. This means that an
Appellant must include:

  • any order the Commission made about the case;

  • a copy of the decision and the reasons;

  • a transcript from the original case or a relevant extract from
    the transcript; and

  • a copy of each document from the original proceedings that
    relates to the reason for your appeal.

After providing the appeal book to the Commission, the Appellant
must send a copy of the appeal book to the other party.

Hearing before the Full Bench of the Fair Work Commission

Once the notice of appeal and the appeal book have been
received, the Commission may ask the parties for more information
before the hearing.

The Commission will consider whether an actual hearing is
required or whether they can make their decision ‘on the
papers’. This means they will make their decision based on the
written information provided to them. Often the Commission will
decide to hear the application for permission to appeal and the
appeal at the same time. Sometimes, however, there will be two
separate hearings.

Get help from an employment lawyer if you wish to appeal a FWC
decision

More often than not, it can be difficult to know whether you
have grounds for appeal. Even if you think there has been a mistake
of law or fact, the Commission might decide it was not a big enough
error to allow an appeal.

It is also important to remember that agreements made in a Fair
Work conciliation are made with the consent of the parties. Because
the agreement was made with the parties’ consent, a party
cannot appeal an agreement made in conciliation except in very
limited circumstances. These agreements are not ‘decisions’
of the Fair Work Commission.

If you wish to appeal a Fair Work Commission decision or have
already appealed and want to know what you can do next, you should
seek legal advice from an experienced employment lawyer.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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