There are many barriers to an appeal even in the best case. For starters, there is no automatic right to appeal. A person aggrieved by a decision of a member of the Fair Work Commission must first seek leave in order to bring an appeal before the Appeal Bench. Applications for leave to appeal must be brought within a 21 day time limit.
Per section 604 of the Fair Work Act 2009 (Cth), the Commission will grant permission to appeal if it is satisfied that is in the public interest to do so. Pursuant to the High Court’s decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, there needs to be a legitimate reason for the appeal as the Full Bench may only exercise its power if it identifies some error on the part of the primary decision-maker.
Significantly, it is not enough that the Full Bench may have merely reached a different conclusion to that reached by the primary decision maker. In House v The King (1936) 55 CLR 499 at 505, the High Court of Australia listed the following as legitimate grounds of appeal:
- that the primary decision maker acted upon a wrong principle;
- that the primary decision maker had been guided by irrelevant factors;
- that the primary decision maker had mistaken the facts; or
- that the primary decision maker had failed to take some material consideration into account.
The Full Bench may also intervene in circumstances where the decision was unreasonable or plainly unjust.
If permission to appeal is granted, the Appeal Bench may do any of the following in relation to the appeal:
- confirm, quash (suppress) or vary the decision
- make a further decision in relation to the matter that is being appealed
- refer the matter being appealed to a Commission Member for further action.