Appeals in the Fair Work Commission

In civil cases a party who loses a case at first instance generally has at least one automatic right to appeal a decision. The position is otherwise in the Fair Work Commission where it is a statutory condition precedent for an appeal to proceed that it be regarded by the Commission as being 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.45 The public interest is not satisfied simply by the

identification of error,46 or a preference for a different result.47 In GlaxoSmithKline Australia

Pty Ltd v Makin, 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


[19] 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.49 However, that the Member at first instance made an error is not necessarily

a sufficient basis for the grant of permission to appeal.50

[20] An application for permission to appeal is not a de facto or preliminary hearing of the

appeal. In determining whether permission to appeal should be granted, it is unnecessary and

inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.51

[21] It is well established that an appellate body will not interfere with the factual findings

of a first instance decision-maker unless it is concluded that a finding cannot stand because it

was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or

contrary to compelling inferences.


[22] Where a finding or conclusion involves the exercise of a discretion, where some latitude

is afforded, an appellate body will generally not interfere with the conclusions of the decisionmaker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian

Industrial Relations Commission:


“”Discretion” is a notion that “signifies a number of different legal concepts”. In general

terms, it refers to a decision-making process in which “no one [consideration] and no

combination of [considerations] is necessarily determinative of the result.” Rather, the

decision-maker is allowed some latitude as to the choice of the decision to be made. The

latitude may be considerable as, for example, where the relevant considerations are

confined only by the subject-matter and object of the legislation which confers the

discretion. On the other hand, it may be quite narrow where, for example, the decisionmaker is required to make a particular decision if he or she forms a particular opinion

or value judgment.”

[2023] FWCFB 153


(citations omitted)

[23] For there to be legal error, it would need to be shown that the Commissioner acted on a

wrong principle, took into account irrelevant matters, mistook facts,54 or that the outcome is

unreasonable or plainly unjust.55 It is not enough that a different member or an appellant body

might have reached a different conclusion…………..”


Reeve v PKF (Gold Coast) HR Services Pty Ltd [2023] FWCFB 153 delivered 5 September 2023 per Millho