Fair work appeals

These are the basic principles applied by the Fair Work Commission when dealing with appeals.


“Appeal principles


[19]    An appeal under section 604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.10 There is no right to appeal. Permission is required. Without limiting when permission may be granted, the Commission must grant permission if it is in the public interest to do so. Although not an exhaustive indication, the grant of permission to appeal may be in the public interest if the appeal raises issues of importance and general application, or if there is a diversity of decisions at first instance for which guidance from an appellate full bench is required, or if the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious.11 Assessing whether it is in the public interest to grant of permission to appeal involves a broad value judgment.12



[20]    Permission to appeal is rarely granted if an arguable case of appealable error is not shown, because appeals cannot succeed in the absence of appealable error.13 An error by a Member at first instance will not always provide a sufficient basis for the grant of permission.14


[21]    In this matter we have had the benefit of arguments directed to both permission to appeal and the merits of the appeal.”


Appeal by Feldschuh v Strong Room Technology Pty Ltd  [2024] FWCFB 254 delivered 7 May 2024 per Gostencnik DP, Anderson DP and Easton DP