Appeals in the Fair Work Commission

An appeal cannot lie from a decision of the Fair Work Commission unless it is the public interest. How does that test work?

“The Commission will grant permission to appeal where it is in the public interest to do so.7 The applicable test in assessing whether a matter is in the public interest was summarised by the Full Bench in GlaxoSmithKline Australia Pty Ltd v Colin Makin8 as follows:

“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210]

[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”9

It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.”

Tunsted v Busways North Coast Pty Ltd (2020) FWCFB 25 delivered 9 January 2020 per Catanzariti VP, Sams DP and Hampton C