Financial Services Council Ltd v Industry Super Australia Pty Limited

The case of Financial Services Council Ltd v Industry Super Australia Pty Limited involves a dispute regarding the four-yearly review of default fund terms under the Fair Work Act 2009 (Cth). The case came before the court as a result of the disqualification of two members of the Expert Panel due to conflicts of interest. The legal issues that the court was required to decide included whether the President was entitled to appoint himself to the Expert Panel and whether the Panel was properly reconstituted in accordance with the Act.

The court found that the requirements of section 620(1A) of the Act should not be overridden by an interpretation of section 622(3) that allows for a derogation from the membership requirements it mandates. The court noted that section 620(1A) is expressed in imperative terms and only allows for one departure from its terms in relation to the number of its members. The court also noted that section 622(2) is the only provision that permits a reduction in the number of members on a panel and only then when the President is already a member of that panel. The court found that section 622(3) does not permit any change to the number of members on a panel.

The court further found that the qualifications to be an Expert Panel Member are distinct from those for ordinary members of the Commission, and that their functions are not regarded by the Act as interchangeable. The court held that the Expert Panel was not properly reconstituted in accordance with the Act as it did not include the required number of members.

There be no order as to costs. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.