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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.
You may be able to apply for permission to appeal the decision if you think the Commission:
You can't appeal just because you disagree with the decision.
You must complete a Form F7 - Notice of appeal.
You can get a blank copy of this form from:
In your form, you must provide:
You can file your completed forms:
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.
After you have filed your completed forms, you must also prepare and file an appeal book within seven days.
Your appeal book must include:
You must number the pages of your appeal book consecutively.
You must file three copies of your appeal book.
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:
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.
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:
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:
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:
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.
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:
Generally, your submissions should generally be:
You can lodge your outline of submissions with the Commission:
If you lodge your outline of submissions in person or by post, you must provide three copies.
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.
At the hearing, the Full Bench must decide two issues:
The Full Bench may decide these issues:
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:
Generally, your appeal will be conducted in three stages:
If you are allowed to admit further evidence, the Commission may ask you to present this before you present your case.
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 Full Bench will decide your case by a majority. If there is no majority, the Commissioner Member who has seniority will decide your case.
After hearing your request for permission to appeal, the Full Bench may:
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.
After it has heard your appeal, the Appeal Bench may:
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.
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:
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.
You must complete a Form F6 – Application for costs.
You can file your completed form:
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:
You must serve a copy of your application for costs on the other party as soon as possible.
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.
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’.
You must complete a Form 122 – Notice of appeal.
You can get a copy of this form:
In your form, you must state:
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.