Part 7Part 7 Appeals and references to Commission
187 Appeal to Full Bench from decision of Commission
The following may appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member:(a) a party to the proceedings in which the decision was made,(b) an industrial organisation, or an association registered under Chapter 6, affected by the decision,(c) the Minister if the Minister considers that the public interest is, or is likely to be, affected by the decision,(d) the President of the Anti-Discrimination Board if that President considers that the decision is inconsistent with the principles contained in the Anti-Discrimination Act 1977.Note. An appeal lies against a decision of an Industrial Committee as if the decision were that of a member of the Commission (see section 199 (3)).
188 Appeals to Full Bench by leave only
(1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench.(2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.(3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.(4) This section does not apply to an appeal made by the Minister.
189 Time and procedure for making appeals
(1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows.(2) Further time may be allowed, either before or after the end of that 21-day period.
190 Stay of decision appealed against
If an appeal is made under this Part to a Full Bench of the Commission, the Full Bench or the Commission constituted by a Presidential Member may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Full Bench or Commission.
190A Interlocutory and other matters in proceedings on appeal
(1) If an appeal is made under this Part to a Full Bench of the Commission, the Commission constituted by the President (or by another member of the Commission nominated by the President) may do any one or more of the following for the purposes of, or in relation to, the appeal:(a) make any consent order in relation to the appeal,(b) grant leave to withdraw or discontinue the appeal,(c) give any directions in relation to the hearing of the appeal,(d) deal with any interlocutory application in the appeal.(2) If the appeal is made to a Full Bench of the Commission in Court Session:(a) a non-judicial member may not constitute the Commission for the purposes of this section, and(b) this section applies despite section 153 (2).(3) A member of the Commission who made a decision the subject of an appeal may not constitute the Commission for the purposes of this section.(4) This section does not authorise:(a) the Commission constituted in accordance with this section to grant leave to appeal, or(b) the granting of a stay against the decision appealed against otherwise than under section 190.
(1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against.(2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against.(3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.Note. The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders.
(1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act):(a) confirm, quash or vary the decision of the Commission concerned, or(b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or(c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate.The Full Bench may determine a part of the matter and refer the remainder back to the member of the Commission.
(2) The Full Bench may direct that its decision on an appeal under this Part take effect as from any specified date after the lodging of the original application relating to the decision.
193 References by members to Full Bench
(1) A member of the Commission may refer to the President, for decision by a Full Bench of the Commission:(a) a matter (or part of a matter) before the member, or(b) a question arising in a matter before the member.(2) The President is to determine whether or not a Full Bench should deal with the matter or question.(3) The Full Bench may:(a) hear and determine the matter or question, or(b) refer the matter or question back to the member, with such directions or recommendations as the Commission considers appropriate.The Full Bench may hear and determine a part of the matter and refer the remainder back to the member.
(4) This section extends to a reference by a member who is the Chairperson of an Industrial Committee of a matter before the Committee.
194 Appeal from Industrial Registrar to Commission
(1) A person may appeal to the Commission against:(a) a decision made by the Industrial Registrar in a matter (or any part of a matter) arising under this Act that directly affects the person, or(b) a refusal by the Industrial Registrar to make such a decision.However, an appeal does not lie if the decision or refusal relates to settling minutes of an award or other decision of the Commission.
(2) An appeal against a decision relating to the refusal of an application for registration or an objection to any such application may only be made by the applicant or a party to the hearing of the matter by the Industrial Registrar. The regulations and, subject to the regulations, the rules of the Commission may make provision with respect to the persons who may appeal under this section.(3) If an appeal is instituted under this section, the Commission may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Commission.(4) For the purposes of an appeal under this section, the Commission may, by leave, receive further evidence.(5) On hearing an appeal under this section, the Commission may do any one or more of the following:(a) confirm, quash or vary the decision concerned,(b) make a decision dealing with the subject-matter of the decision concerned,(c) direct the Industrial Registrar to take further action to deal with the subject-matter of the decision as directed by the Commission.
195 Reference by, or removal from, Industrial Registrar to Commission
(1) The Industrial Registrar may refer to the President, for decision by the Commission:(a) a matter (or part of a matter) before the Industrial Registrar, or(b) a question arising in a matter before the Industrial Registrar.(2) The President is to determine whether or not the Commission should deal with the matter or question.(3) The Commission may:(a) hear and determine the matter or question, or(b) refer the matter or question back to the Industrial Registrar, with such directions or recommendations as the Commission considers appropriate.The Commission may hear and determine a part of the matter and refer the remainder back to the Industrial Registrar.
(4) A matter before the Industrial Registrar is to be heard and determined by the Commission if the President refers the matter for hearing and determination by the Commission (whether constituted by a single member or by a Full Bench).
196 Appeals from and references by members of Commission in criminal proceedings
(1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.(2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.(3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912:(a) to the Court of Criminal Appeal—is taken to be a reference to a Full Bench of the Commission in Court Session, and(b) to the Supreme Court—is taken to be a reference to the Commission in Court Session, and(c) to rules—is taken to be a reference to rules of the Commission, and(d) to the Attorney General—is taken to include a reference to the Minister, and(e) to the Director of Public Prosecutions—is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and(f) to the registrar—is taken to be a reference to the Industrial Registrar.(4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs.
(1) An appeal lies to a Full Bench of the Commission in Court Session against:(a) any order made under this Act by the Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or(b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or(c) a civil penalty imposed under this Act by the Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty, or(d) a civil penalty imposed under Division 7 of Part 13 of the Work Health and Safety Act 2011 by the Local Court for a contravention of a WHS civil penalty provision or the dismissal by the Local Court of proceedings for such a civil penalty.(2) The provisions of the Crimes (Local Courts Appeal and Review) Act 2001 that relate to:(a) appeals from the Local Court to the District Court or Supreme Court, and(b) the decisions of the District Court or Supreme Court on any such appeal, and(c) the carrying out or enforcement of any such decision,(including those provisions as applied by section 70 of the Local Court Act 2007) apply, subject to the regulations under this Act, to any appeal referred to in subsection (1).(3) (Repealed)(4) The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate.(5) Section 179 (Finality of decisions):(a) applies to a decision or purported decision of the Local Court in proceedings to which this section applies in the same way as it applies to a decision or purported decision of the Commission, and(b) without limiting that section, applies to a decision or purported decision of the Commission in respect of proceedings to which this section applies.Note. The provisions of this section are extended to similar proceedings under other industrial relations legislation eg section 14 of the Annual Holidays Act 1944; section 14 of the Long Service Leave Act 1955.
197B Appeals on questions of law in relation to public sector promotional and disciplinary matters
(1) A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Full Bench of the Commission in Court Session against any decision of the Commission in the proceedings on a question of law.(2) On an appeal under this section, the Full Bench of the Commission in Court Session may:(a) remit the matter to the Commission for determination in accordance with the decision of the Full Bench, or(b) make such other order in relation to the appeal as seems fit.