An appeal against a decision of a single member of the Fair Work Commission will only lie if the appeal bench (normally a Full Bench) if the appellant positively demonstrates that it is in the public interest for the appeal to be head. As a former Western Australian Chief Justice was fond of saying “that the public might be interested has nothing to do with whether it is in its interest.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin (2010) FWAFB 5343 a Full Bench of Fair Work Australia 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…”