Australian Childcare Alliance v Jeniza Mae Floresca Aquino [2026] FWCFB 249 concerned an appeal by the Australian Childcare Alliance Inc (ACA), a national representative body for early childhood education employers, to the Full Bench of the Commission. The ACA sought to appeal the Commission’s consent arbitration decision, made under section 739 of the Fair Work Act 2009 (Cth). Section 739 provides how the Commission can deal with disputes under dispute resolution terms in enterprise agreements or modern awards. The ACA was not a party to the workplace dispute or arbitrated decision of that dispute.
The Full Bench held that, subject to the dispute resolution terms and the requirements of section 604 of the Act, a non-party can bring such an appeal. Section 604 allows an aggrieved person to appeal a decision made by the Commission where they receive the Commission’s permission.
Background
Ms Aquino was an early childhood teacher employed by a Sydney-based early learning centre. A dispute arose between Ms Aquino and her employer about her classification under the Educational Services (Teachers) Award 2020.
The dispute concerned the application of transitional arrangements in the Award, which had ongoing implications on her correct classification under the Award. In applying the transitional provisions, Ms Aquino contended that she should be classified as an Early Childhood Teacher Level 3 rather than Level 2.
Unable to resolve the classification dispute at the workplace, Ms Aquino referred it to the Commission under clause 31 of the Award. Clause 31 allowed the parties to a dispute to agree on the process the Commission follows in dealing with disputes, including mediation, conciliation and consent arbitration. The dispute was subsequently arbitrated by the Commission, and a decision was issued on 28 July 2026, determining that the appropriate classification for Ms Aquino was Level 3.
The appeal and competency objection
The ACA was not a party to the dispute or the arbitration between Ms Aquino and the employer. Nonetheless, the ACA sought to appeal the Commission’s decision under section 604 of the Act. Ms Aquino objected to the ACA appealing that decision, contending that a non-party has no standing to appeal a decision made in a private, consent-based arbitration conducted under section 739.
The Full Bench observed that the question of whether a non-party can appeal from an arbitration did not appear to have been previously considered by the Commission. In resolving the appeal, the Full Bench examined whether:
- the appeal process extends to disputing a consent arbitration by the Commission
- the dispute resolution clause in the Award placed any express or implied limitation on who may appeal an arbitrated outcome
- the ACA satisfied the requirements of section 604 of the Act, including whether it could properly be regarded as a person ‘aggrieved’ by the decision.
The Full Bench rejected the objection to the ACA bringing the appeal. It held that a non-party could appeal the Commission’s arbitrated decision, provided that the dispute resolution terms of the relevant award or agreement do not limit that right, and the requirements of section 604 of the Act were otherwise satisfied. Here, the Full Bench was satisfied that the ACA had an interest in the Commission’s decision that was different from that of an ordinary member of the public and was therefore aggrieved by the decision.
As there was no limitation contained in the relevant dispute resolution clause of the Award, and the Full Bench was satisfied that the ACA met the threshold requirements of section 604, the ACA was permitted to proceed with its appeal.
Key takeaways
All modern awards and enterprise agreements contain a dispute resolution clause that provides a procedure for settling disputes about matters arising under the award or agreement or in relation to the National Employment Standards.
Where the award or agreement permits resolution of a dispute by Commission arbitration, this Full Bench decision confirms that an interested third party, such as an industry body, employer association or union that was not a party to the dispute or arbitration before the Commission, may be able to appeal the Commission’s arbitrated decision that affects its members or interests.
Employers should review the dispute resolution clauses in applicable awards and enterprise agreements and, where consent arbitration with the Commission is an available avenue for resolution, be wary of the possibility of an external third-party appeal.
If you have any questions about the issues raised in this article or would like assistance with matters related to your organisation’s dispute resolution processes or appealing an arbitrated decision, please contact our workplace relations and safety team.
