review of decision of Fair Work Commission and Full Bench of Fair Work Commission
s 16(1) Administrative Decisions (Judicial Decisions) Review Act 1977 (Cth)
s 39B Judiciary Act 1903 (Cth)
Quick Take
1When considering whether 'exceptional circumstances' exist under s 394(3) of the Fair Work Act 2009 (Cth), the FWC must meaningfully engage with the merits of the substantive unfair dismissal application as a mandatory consideration under s 394(3)(e); a self-evident observation that the applicant has 'an apparent case' to which the respondent has 'an apparent defence' does not constitute meaningful consideration.
2The FWC is not required to make final determinations on contested facts when assessing merits under s 394(3)(e), but must form at least an impressionistic view of the merits by reference to the material before it, consistent with the approach to merits assessment in extension of time applications generally (Tu'uta Katoa v Minister for Immigration [2022] HCA 28).
3Where the Full Bench, in considering permission to appeal under s 400(1), fails to identify and address an obvious omission by the FWC of a mandatory statutory consideration that is plain on the face of the primary decision, the Full Bench fails to apply itself to a question required of it, constituting jurisdictional error.
