It is difficult to appeal decisions of the Fair Work Commission at first instance. Here are the principles.
“Principles on appeal
[16] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s
powers on appeal are exercisable only if there is error on the part of the primary decision
maker.14 There is no right to appeal, and an appeal may be made only with the permission of
the Commission.
[17] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if
satisfied that it is “in the public interest to do so.” The task of assessing whether the public
interest test is met is a discretionary one involving a broad value judgment.15 The public interest
is not satisfied simply by the identification of error, or a preference for a different result.16 In
GlaxoSmithKline Australia Pty Ltd v Makin17 a Full Bench of the Commission identified some
of the considerations that may attract the public interest:
“… 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.”18
[18] The test of “exceptional circumstances” in relation to extensions of time to lodge
applications under s 394, establishes a “high hurdle” for an application for an extension, and a
decision as to whether to extend time under s 394(3) involves the exercise of discretion.19
Therefore it will be necessary, in an application for permission to appeal against a decision
made under s 394(3), to demonstrate that there is an arguable case and that there was appealable
error in the exercise of the discretion. This will require the identification of error of the type
described in House v The King20
– that is, that the decision-maker has acted on a wrong principle,
has mistaken the facts, has taken into account an irrelevant consideration or failed to take into
account a relevant consideration, or has made a decision which is unreasonable or manifestly
unjust.
[19] An appellate tribunal is not authorised to set aside a discretionary decision on the basis
of a preference for an outcome different to that determined by the first instance decision-maker.
In this respect, the High Court said in Norbis v Norbis:
21
“The principles enunciated in House v. The King were fashioned with a close eye on the
characteristics of a discretionary order in the sense which we have outlined. If the
questions involved lend themselves to differences of opinion which, within a given
range, are legitimate and reasonable answers to the questions, it would be wrong to allow
a court of appeal to set aside a judgment at first instance merely because there exists just
such a difference of opinion between the judges on appeal and the judge at first instance.
In conformity with the dictates of principled decision-making, it would be wrong to
determine the parties’ rights by reference to a mere preference for a different result over
that favoured by the judge at first instance, in the absence of error on his part. According
to our conception of the appellate process, the existence of an error, whether of law or
fact, on the part of the court at first instance is an indispensable condition of a successful
appeal.”
[2023] FWCFB 69
6
[20] We turn now to examine the grounds of appeal.”
Oakes v Fernance Enterprises Pty Ltd T/A Autobarn Lismore [2023] FWCFB 69 delivered 3 April 2023 per Catanzariti VP, Clancy DP and Millhouse DP