Appeals in the Fair Work Commission

Most appeals in the Fair Work Commission require that as a preliminary obstacle permission to appeal is required and is only capable of being granted if it is in the public interest. This is how the system operates.

“There is no right to appeal and an appeal may only be made with the permission of the

Commission.

[16] By s 400(1), despite s 604(2), the Commission must not grant permission to appeal from

a decision made by the Commission “under this Part” unless the Commission considers that it

is in the public interest to do so. The reference to “this Part” in s 400(1) is to Part 3-2 of the

Act. This appeal is one to which s 400 of the Act applies. The test under s 400 is “a stringent

one.”

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[17] The task of assessing whether the public interest test is met is a discretionary one

involving a broad value judgment.12 The public interest is not satisfied simply by the

identification of error,13 or a preference for a different result.14 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

matters…”

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[18] It will rarely be appropriate to grant permission to appeal unless an arguable case of

appealable error is demonstrated. This is because an appeal cannot succeed in the absence of an

appealable error.16 However, that the Member at first instance made an error is not necessarily

a sufficient basis for the grant of permission to appeal.

[19] 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.17

[20] 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.

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

is afforded, an appellate body will also generally not interfere with the conclusions of the

decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian

Industrial Relations Commission:

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““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

[2023] FWCFB 182

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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.”

(citations omitted)

[22] 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,20 or that the outcome is

unreasonable or plainly unjust.21 It is not enough that a different member or an appellant body

might have reached a different conclusion.”

 

Vincent v Roof Safe Pty Ltd – [2023] FWCFB 182 delivered 9 October 2023 per Millhouse DP, Lake DP and Simpson C