How to appeal a Fair Work Commission decision

How to appeal a Fair Work Commission decision

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.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114

  This article relates to Australian law; either at a State or Federal level.

The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.

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