Appealing the decision of the Fair Work Commission

If you are unhappy with the decision of the Fair Work Commission (the Commission), you may be able to apply for (leave) permission to appeal within 21 days of the date of the decision.

If it has been more than 21 days since the decision was made, you may still be able to appeal. However, you will need to ask for an extension of time and explain why you did not file your appeal within the time limit.

Before you appeal, you should get legal advice. If the Commission thinks that your appeal was clearly weak and you had no chance of winning, it can order you to pay the other party’s legal costs.

When you can appeal

You may be able to apply for permission to appeal the decision if you think the Commission:

• did not follow the law correctly
• did not consider an important piece of information
• had no evidence to support a decision or conclusion that it reached
• made a decision or reached a conclusion that was contrary to the evidence
• used irrelevant factors to decide your case.

You can't appeal just because you disagree with the decision.

How to appeal

You must complete a Form F7 - Notice of appeal.

You can get a blank copy of this form from:

• your nearest Commission office, or
• the Forms page on the Fair Work Commission website.

In your form, you must provide:

• the Commission matter number
• the name of the Member or Delegate who made the decision you are appealing
• the date of the decision
• the name and contact details of the respondent.

You can file your completed forms:

• online, via the Commission’s Online Lodgment Service (OLS)
• in person
• by post
• by email
• by fax.

  You should post your forms to the Commission’s postal address, not its street address. You can find each office’s contact details on the Contact us page on the Fair Work Commission website.

Appeal book

After you have filed your completed forms, you must also prepare and file an appeal book within seven days.

Your appeal book must include:

• copies of any orders made by the Commission
• a copy of the statement of the reasons for the decision that you are appealing
• the transcript from the original hearing, or a relevant extract from the transcript
• every document that was used as an exhibit or written submissions that relates to the grounds of your appeal.

You must number the pages of your appeal book consecutively.

You must file three copies of your appeal book.

Asking for an extension

If you want to file an appeal outside of the 21 days, you must ask the Commission for an extension of time.

To do this, you must complete part 5. Extension of time in your Form F7 – Notice of appeal.

The Commission won’t give you an extension unless there are good reasons for doing so. You can’t get an extension as a matter of course.

When deciding whether to grant you an extension, the Commission will consider:

• the length of the delay
• whether there is a satisfactory reason for the delay
• the nature of the grounds of appeal and the likelihood of the grounds being upheld, and
• whether the respondent would be prejudiced.

Stay orders

Asking for permission to appeal does not automatically stay (stop) the operation of the original decision. You can ask the Commission to stay all or part of the original decision until your appeal is heard. 

To ask for a stay order, you must complete Part 4. Stay under section 606 of the Fair Work Act 2009 in your Form F7– Notice of appeal.

If you apply for a stay of the original decision, the Commission will hold a hearing to consider your application. Generally, this hearing will take place within seven days form the date you lodge your appeal.

The Commission can make a stay order on any terms and conditions that is considers appropriate. 

Legal representation

You don’t need to have legal representation at the hearing. The Commission will deal with your case in an informal, and where possible, non-adversarial manner.

If a lawyer represented you at the original hearing, a lawyer may represent you at the appeal hearing.

If a lawyer didn’t represent you at the original hearing, you will need to ask the Appeal Panel for leave (permission) to have a lawyer represent you during the appeal hearing.

You don’t need the Commission’s permission to be represented at the hearing by:

• an employee or officer
• an employee or officer of a registered organisation, association or employers or peak council, or
• a bargaining representative.

If you want a lawyer to represent you at any other time, apart from at a conference or hearing, you don’t need the Commission’s permission. This includes:

• preparing and filing written applications, responses, submissions and other documents with the Commission, and
• corresponding with the Commission and other party.

How to apply

You must complete a Form F53 - Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing.

You should do this when you complete your Form F7– Notice of appeal.

After you file your form, the other party will be invited to respond to your application, to say whether they agree with, or oppose, your request.

Where possible, the Commission will decide your application to be represented based on the papers. You and the other party will be advised of the outcome prior to the hearing.

The Commission may use its discretion to grant you permission where:

• your case is complex and having representation would allow your case to be dealt with more efficiently
• you are unable to represent yourself and it would be unfair for the Commission not to allow you to be represented
• it would be unfair for the Commission not to allow you to be represented, taking into account fairness between you and the other party.

Serving the other party

You must serve a copy of your forms on the other party as soon as practicable.

You must serve a copy of your appeal book on the other party no later than seven days after you file it with the Commission.

Submissions

Once you have been given a hearing date for your appeal, you will be directed to file and serve outlines of submissions or witness statements that you want to present at your appeal.

Your submissions should state:

• the grounds on which you are asking for permission to appeal, including why it is in the public interest for the Commission to grant you permission to appeal
• the legal or factual errors in the original decision
• list any authority that you wish to rely on.

Generally, your submissions should generally be:

• less than 10 pages
• on A4 paper
• typed in a size 12 font that is easy to read and double spaced, or clearly handwritten.

You can lodge your outline of submissions with the Commission:

• by email, to the chambers email listed on the notice of listing, or
• in person
• or by post.

If you lodge your outline of submissions in person or by post, you must provide three copies.

Timing of the appeals process

Generally, within a week of filing your Form F7 – Notice of Appeal, you will be given a Notice of Listing and directions will be made for each party to file their outline of submissions. You must serve your Form F7 – Notice of Appeal and appeal book on the other party within a week of filing.

You will usually be directed to file and serve your outline of submissions within three weeks after direction are made.

The other party will then be directed to file their outline of submission within three weeks after you file and serve your outline submissions.

The hearing will generally be listed 10 to 12 weeks after you file your forms.

The hearing

Evidence

At the hearing, the Full Bench must decide two issues:

1. whether you should be given permission to appeal, and
2. whether the Commissions made an error in its original decision.

The Full Bench may decide these issues:

• based on the written material only, with the consent of both parties – this is called a hearing ‘on the papers’, or
• by listing your case for an oral hearing.

Normally, the Full Bench will only consider the evidence that was raised at the hearing. However, it can consider further evidence or information where it is appropriate. When deciding whether to admit further evidence, the Commission must be satisfied that:

• the evidence could not have been obtained with reasonable diligence for use at the original hearing
• the evidence is credible
• there is a high degree of probability that there will be a different decision having regard to the evidence.

Conduct of hearing

Generally, your appeal will be conducted in three stages:

1. you present your case
2. the other party responds to your case
3. you reply to the other party.

If you are allowed to admit further evidence, the Commission may ask you to present this before you present your case.

Adjournments

The Appeal Panel deals with appeals as quickly as possible. For this reason, it rarely adjourns appeals.

If you want to ask for an adjournment, you must make a written request to the presiding Member of the Full Bench explaining fully why you are asking for an adjournment. You must do this as soon as possible after you receive your Notice of Listing.

You should send a copy of your request to the other party.

The decision

The Full Bench will decide your case by a majority. If there is no majority, the Commissioner Member who has seniority will decide your case.

Leave to appeal

After hearing your request for permission to appeal, the Full Bench may:

• refuse your request, or
• grant you leave to appeal.

The Commission must grant you leave to appeal a decision if it is in the public interest to do so.

If your request for permission to appeal is refused, any order staying the original decision will be discharged. Once a stay order is discharged, the other party will be able to take action on the decision, including enforcing the decision.

Your appeal

After it has heard your appeal, the Appeal Bench may:

• confirm the decision and dismiss the appeal
• quash or vary the decision made at the hearing
• make a further decision about the matter that is the subject of the appeal
• refer your case to a Commission Member for further action.

The Full Bench may give its judgment on the day, or it may reserve its judgment. 

If the Full Bench reserves its judgment, it will usually be given within eight to 12 weeks of the final hearing day or the day on which any further submissions or material must be filed by the parties.

If your appeal is dismissed, any order staying the original decision will be discharged. Once a stay order is discharged, the other party will be able to take action on the decision, including enforcing the decision.

Costs

Generally, each party must pay their own legal fees. There is not automatic right to costs.

The Court can only make a costs order against a party in limited circumstances, where it is satisfied that:

• a party acted vexatiously or without reasonable cause
• a party’s application or response had no reasonable prospects of success
• a party caused costs to be incurred because of an unreasonable act or omission by that party in connection with the conduct or continuation of the case.

The Commission’s power to order costs is discretionary. In circumstances where the Commission has the power to make a costs order, it will only do so if it is appropriate. 

Where a costs order is made against a party, it will usually only cover a proportion of the other party’s costs, not the whole amount of legal fees that they have incurred. 

How to apply

You must complete a Form F6 – Application for costs.

You can file your completed form:

• in person
• by email
• by fax, or
• by post.

 You should post your form to the office’s postal address, not its street address. You can find the office’s contact details on the Contact us page on the Fair Work Commission website.

You must file your completed form within 14 days after:

• the Commission determines your case, or
• your case is discontinued.

You must serve a copy of your application for costs on the other party as soon as possible.

Appealing to the Federal Court of Australia

If you are unhappy with the decision of the Appeal Bench, you may be able to appeal to the Federal Court of Australia within 28 days.

When you can appeal

You may be able to appeal a decision if you think the Court made a mistake about the law (called an 'error of law'). 

You can’t appeal if you think the Court wrongly decided the facts. This is called an ‘error of fact’.

How to apply

You must complete a Form 122 – Notice of appeal.

You can get a copy of this form:

• online, from the Forms under the Federal Court Rules 2011 page on the Federal Court of Australia website, or
• from your nearest Federal Court registry.

In your form, you must state:

• whether you are appealing the whole or part of the judgment or orders – if you are appealing some of the orders, you must identify which ones
• the grounds of your appeal or the errors you say the Appeal Bench made
• the orders that you want the Court to make instead
• your address for service.

You will also need to provide a copy of Judgment or Order and Reasons for Judgment.

You must file your completed form and accompanying documents at the Registry of the Court that made the decision you are appealing.

You will have to pay a filing fee.

Before you appeal, you should get legal advice.

For more information about appealing to the Federal Court, see Appealing the Courts decision.