Finance Sector Union of Australia v Insurance Australia Group Services Pty Ltd
[2025] FWC 386
•11 FEBRUARY 2025
| [2025] FWC 386 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Finance Sector Union of Australia
v
Insurance Australia Group Services Pty Ltd
(C2024/7920)
| COMMISSIONER SLOAN | SYDNEY, 11 FEBRUARY 2025 |
Representation by lawyers and paid agents
The Finance Sector Union (“FSU”) is in dispute with Insurance Australia Group Ltd (“IAG”) over the public holidays provision of the IAG Enterprise Agreement 2024 (“Agreement”). It has applied to the Commission to deal with that dispute under s 739 of the Fair Work Act 2009 (“Act).
IAG seeks to be legally represented in the proceedings by counsel, instructed by King & Wood Mallesons, including at the arbitration listed for 26 February 2025. The FSU opposes such representation.
Determination
I have determined that IAG is entitled to be legally represented in these proceedings by operation of the Agreement. It does not require the Commission’s permission to be so represented. My reasons follow.
The parties’ contentions
As a general proposition, under s 596(1) of the Act a person may be represented in a matter before the Commission by a lawyer or paid agent only with the Commission’s permission. The Commission may only grant such permission if it is satisfied of one or more of the grounds set out in s 596(2). Even then, the Commission must be persuaded that it should exercise its discretion to grant permission.[1]
However, IAG contends that the terms of the Agreement limit or override the discretion that s 596 confers on the Commission.
The relevant terms of the Agreement are contained in a part of the document titled “Resolving Workplace Issues”. It contains a series of six “steps” (clause 61) by which to “settle disputes about any matters arising under the Agreement and in relation to the NES” (clause 59). The first four steps are directed to resolving the dispute at the workplace level. The remaining two allow for the dispute to be escalated to the Commission. Those steps are in these terms:
“5. If the matter is not resolved in step 4, the matter may separately or jointly be referred to the FWC for resolution which may include mediation or conciliation. If a dispute reaches the FWC, the parties are entitled to be represented, including by legal representatives.
6. If the matter is not resolved in step 5, the matter may separately or jointly be referred to the FWC for resolution by arbitration. If a dispute reaches the FWC, the parties are entitled to be represented, including by legal representatives.”
(Emphasis added)
IAG submits that these terms provide an automatic right for the parties to be legally represented in proceedings in the Commission arising under steps 5 and/or 6 of clause 61.
IAG made submissions in the alternative as to why the Commission ought to be satisfied that the grounds in s 596(2) were met in this case, and why it was appropriate that I exercise my discretion to grant permission to IAG to be legally represented. Due to the basis on which I have determined this matter, I do not need to traverse those submissions.
The FSU disputes IAG’s construction of the Agreement and denies that it overrides the Commission’s discretion in s 596(2). Its submissions have two parts.
First, the FSU contends that the words in steps 5 and 6 of clause 61 “are simply stating the facts” – that is, under s 596(1) a party may be represented in proceedings before the Commission, subject to receiving the Commission’s permission. The FSU contends that legal representation under the Agreement remains subject to a party meeting the requirements of s 596(2) and permission being granted.
Second, the FSU submits that the question of the Agreement conferring an automatic right to legal representation “was never discussed with or agreed to by the FSU”. It contends that it never agreed that the language of steps 5 and 6 of clause 61 would displace s 596. The FSU submits that had this been suggested it “would have insisted” on the Agreement containing words to the effect that legal representation remained subject to permission being granted by the Commission under s 596.
The FSU also made submissions setting out the basis on which it contended that the Commission would not be satisfied that the grounds in s 596(2) were met. Again, it is not necessary to traverse them.
Consideration
The meaning of the Agreement
The starting point is to determine what is meant by the words “If a dispute reaches the FWC, the parties are entitled to be represented, including by legal representatives.”
The principles of interpretation of enterprise agreements are well established.[2] They were recently summarised by the Full Bench as follows:[3]
“In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement and may extend to other documents with which there is an association. The statutory framework under which the enterprise agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as the framers of such documents were likely to be of a practical bent of mind. The words are not to be interpreted in a vacuum or divorced from industrial realities. The customs and working conditions of the particular industry are relevant. But the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument.”
As the Full Bench further observed, interpretation is always a text-based activity.[4]
Applying these principles, I cannot accept the construction of the Agreement for which the FSU contends. The use of the word “entitled” in steps 5 and 6 of clause 61 is significant. It cannot be reconciled with the FSU’s contention that the language of the Agreement is “simply stating the facts” in the manner it describes. Section 596 confers no entitlement to legal representation. To the extent that a party has an entitlement in respect of s 596, it is no more than to apply for permission to be represented (whether by a lawyer or paid agent).
To accord with the FSU’s suggested construction, the relevant sentences in steps 5 and 6 would need to be read as meaning, in effect: “If a dispute reaches the FWC, the parties are entitled to be represented, but in the case of legal representatives this is limited to an entitlement to apply to the FWC for permission to be legally represented under s 596 of the Act.” That simply does not accord with the words that the parties used to reflect their agreement.
On the ordinary meaning of the words in steps 5 and 6 of clause 61, a party in proceedings before the Commission brought in reliance on those provisions “is entitled to be represented…by legal representatives”. The FSU has provided no basis on which I should find that the words should not be given their ordinary meaning.
In this regard, I am not assisted by submissions as to what changes to the language of the Agreement the FSU may have sought to negotiate if it were made aware of the interpretation that IAG would place on the words in steps 5 and 6. The submissions are at best hypothetical. Indeed, they might suggest that without the changes on which the FSU says it “would have insisted”, the construction for which the IAG presses is to be preferred. I do not, however, draw that conclusion.
Having regard to the matters to which I have referred, I find that steps 5 and 6 of clause 61 of the Agreement create an entitlement for a party to be legally represented in proceedings before the Commission brought pursuant to those provisions. On the terms of the Agreement, that entitlement is unconstrained.
Interaction between the Agreement and the Act
The question which next arises is whether the Act, and in particular s 596, constrains the entitlement. For the following reasons, I find that it does not.
When dealing with a dispute under a dispute settlement procedure in an enterprise agreement the Commission acts as a private arbitrator.[5] The procedures the Commission is required to apply in dealing with such a dispute, and the powers it is able to exercise, depend on the terms of the agreement.[6] Through their agreement, the parties may agree to modify the way in which the Act would otherwise require the Commission to deal with the matter.[7] For example, an agreement could provide that the parties have an unconstrained right to be legally represented or that the parties are not entitled to be represented.[8]
In my view, that example is entirely apposite to the present case. In light of my finding as to the proper construction of the Agreement, the parties have agreed to remove the requirement under s 596 to obtain permission to be legally represented in proceedings arising under steps 5 and/or 6 of clause 61. That is, the Agreement operates to provide the parties with “a direct right of representation”.[9]
This outcome is supported by s 739(3) of the Act. Under that provision, the Commission must not, in dealing with this dispute, exercise any powers limited by clause 61 of the Agreement. Purporting to exercise the discretion under s 596 so as to deny IAG from having legal representation in this matter would fall foul of s 739(3).
Conclusions
I conducted a conference in this matter on 19 November 2024. That was step 5 under the Agreement. The arbitration for this matter is listed on 26 February 2025. The parties are at step 6. IAG is entitled to be legally represented at the arbitration, and in any other proceedings conducted by the Commission to resolve the dispute under step 6, by operation of the Agreement. It does not require the Commission’s permission to be so represented.
COMMISSIONER
[1] Warrell v Walton [2013] FCA 291 at [24]; Singh v Metro Trains Melbourne[2015] FWCFB 3502 at [14]; Wellparks Holdings Pty Ltd t/as ERGT Australia v Kevin Govender[2021] FWCFB 268 at [48]
[2] James Cook University v Ridd (2020) 278 FCR 566; [2020] FCAFC 123 at [65]; Workpac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 at [197]
[3] Independent Education Union of Australia v Peregian Beach Community College Ltd T/A Peregian Beach College[2025] FWCFB 1 at [17]
[4] Independent Education Union of Australia v Peregian Beach Community College Ltd T/A Peregian Beach College[2025] FWCFB 1 at [30], citing Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [67]
[5] PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Mr Martin Nash, Mr Paul Micheletti, Mr Gregory McAllister[2024] FWCFB 396 at [16] and [21] (and the cases there referred to).
[6] ibid.
[7] DP World Brisbane Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8557 at [53]
[8] PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Mr Martin Nash, Mr Paul Micheletti, Mr Gregory McAllister[2024] FWCFB 396 at [22]
[9] Shop, Distributive and Allied Employees Association v Woolworths (South Australia) Pty Ltd and Woolworths Group Ltd; Heidi Corinth v Woolworths Group Ltd T/A Woolworths[2021] FWC 617 at [12]
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