Fair Work Act 2009

s.739 - Dispute resolution

Dispute about a matter arising under the enterprise agreement - Commission's powers to deal with a dispute - Powers of the Commission to inform itself - Interlocutory application to intervene by employee organisation covered by the Agreement - Whether Commission's powers to grant a party leave to intervene are limited by dispute settlement procedure - Proper construction of dispute settlement procedure.

• [1] This decision concerns an application by the Australian and International Pilots Association (AIPA) to 'intervene' in a dispute between Captain Murray William Butt (Captain Butt) and Qantas Airways Limited (Qantas).

• [2] The dispute relates to a decision by Qantas to change the car parking arrangements for employees based at its Mascot Campus, which is located adjacent to Sydney Airport. Captain Butt contends that Qantas has removed long-term car parking arrangements that were exclusively available to Qantas Mainline Captains for duty and leisure travel as part of a prior bargaining/dispute settlement. In response to that, Captain Butt initiated a grievance under clause 48 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (Agreement).

• [3] Qantas contends that grievances about car parking arrangements do not fall within the scope of clause 48 of the Agreement. This led to a dispute between Captain Butt and Qantas about whether car parking arrangements fall within the scope of the grievance procedures set out in clause 48.

• [4] Captain Butt and Qantas were unable to resolve the dispute, and Captain Butt made an application pursuant to s.739 of the Fair Work Act 2009 (FW Act) for the Commission to resolve the dispute.

• [5] The matter was unable to be resolved by conciliation and was listed for hearing on 18 March 2025.

• [6] Prior to the hearing, the AIPA made an application under ss.589 and 590 of the FW Act seeking an order that it be granted "leave to intervene" in the dispute (Interlocutory Application). Captain Butt does not support or oppose the Interlocutory Application. Qantas opposes the Interlocutory Application and submits that it should be dismissed for two reasons:

(i) The parties to the Agreement have limited the Commission's powers and have not conferred upon the Commission any power or discretion to permit a third party to "intervene" in a dispute; and

(ii) If the Commission does have such a discretion, the Commission should not exercise that discretion.

• [7] The Interlocutory Application was heard on 31 March 2025. Both the AIPA and Qantas were granted permission to be represented by lawyers as I was satisfied that the precondition in s.596(2)(a) of the FW Act had been met, and that it was appropriate to exercise my discretion to grant permission. The AIPA was represented by Mr D. Taylor, solicitor. Qantas was represented by Mr D Ward of counsel. Captain Butt was represented by Mr D Stephens, Senior Industrial Officer of the Australian Federation of Air Pilots.

• [8] For the following reasons, I find that the dispute settlement procedure set out in clause 47 of the Agreement does not limit the Commission's powers to permit a third party to intervene in a dispute, and I have decided to exercise my discretion to allow the AIPA to intervene in the dispute.

• [9] The dispute settlement procedure is set out in clause 47 of the Agreement which provides as follows:

This clause 47 applies where any dispute arises about any matters arising under this Agreement or in relation to the National Employment Standards.

Note: For the purpose of this clause 47.2, 'party' means the Company and pilot(s) covered by this Agreement.

It is important that pilots and the Company commit to resolving any disputes that may arise, however if such a dispute arises the following procedure must be followed:

47.2.1 The matter will first be discussed by the affected pilot(s) and Fleet Manager.

47.2.2 If not resolved, the matter will be discussed by the affected pilot(s) and the Chief Pilot (or delegate).

47.2.3 Should an issue remain unresolved, it may be referred by either party to the FWC to resolve through private conciliation and/or arbitration.

47.2.4 Subject to the provisions of this clause and clause 46.1, the parties to the dispute will accept the outcome of any arbitration.

47.2.5 If a dispute is referred to the FWC for resolution, the FWC can take any or all of the following actions as it considers appropriate to resolve the dispute:

(a) convene conciliation conferences of the parties or their representatives at which the FWC is present;

(b) require the parties or their representatives to confer among themselves at conferences at which the FWC is not present;

(c) request, but not compel, a person to attend proceedings;

(d) request, but not compel, a person to produce documents;

(e) where either party requests, conciliate or make recommendations about particular aspects of a matter about which they are unable to reach agreement; and

(f) subject to clause 46.1, where the matter(s) in dispute cannot be resolved (including by conciliation) and one (1) party or both request, arbitrate or otherwise determine the matter(s) in dispute.

47.2.6 The FWC must follow due process and allow each party a fair and adequate opportunity to present his or her case.

47.2.7 Any determination by the FWC under clause 47.2.5(f) must be in writing if either party so requests, and must give reasons for the determination.

47.2.8 Any determination made by the FWC under clause 47.2.5(f) must not require a party to act in contravention of an applicable industrial instrument or law. Where relevant, and circumstances warrant, the FWC will consider previous decisions of the FWC.

47.2.9 The FWC must not issue interim orders, 'status quo' orders or interim determinations.

47.2.10 A pilot may request to have a representative of his or her choice, which may include a representative from the Association (or a representative of a Registered Industrial Organisation of which they are a member), represent them at any stage of this dispute settlement procedure. Any such representative nominated by the pilot pursuant to this dispute resolution procedure will be allowed access to the pilot on Company premises, or such other place as may be agreed to between the Company and the pilot, so that relevant information and instructions can be obtained.

47.2.11 While the parties attempt to resolve a dispute pilots must continue to work as normal in accordance with this Agreement and the pilot's contract of employment unless a pilot has a reasonable concern about imminent risk to safety or health.

47.2.12 No party will be prejudiced as to the final settlement by the continuance of work in accordance with this clause 47.2.

47.2.13 Where a bona fide safety issue is involved, the Company and the appropriate safety authority must be notified concurrently or at least a bona fide attempt made to so notify the authority.

(1) FWA may deal with a dispute only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.

(2) FWA may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(b) by making a recommendation or expressing an opinion.

(3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.

Example: FWA could direct a person to attend a conference under section 592.

(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(4) This section does not limit the FWC's power to make decisions.

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

• [14] The AIPA submitted that pursuant to ss.589 and 590 of the FW Act, the Commission has a broad discretion to grant an interested person leave to intervene in a proceeding.

• [15] In its written submissions the AIPA submitted that the Commission's powers to deal with a dispute were conferred and limited by the terms of the FW Act. However, in oral submissions, the AIPA submitted that when dealing with an application under s.739 (which relates to dispute arising under an enterprise agreement), the Commission's powers to deal with the dispute are determined by the enterprise agreement and are subject to any limitations in dispute settlement procedure.

• [16] The AIPA submitted that when the parties to an enterprise agreement agree that disputes may be settled by the Commission then, subject to any limitation, they take the Commission as they find it, including the statutory powers of the Commission. In support of this submission the AIPA cited the decisions of the Full Court of the Federal Court of Australia in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 (AMWU v ALS) at [57]-[58] and United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FCAFC 7 (UFUA v FRV (Full Court)) at [27].

• [17] The AIPA submitted that in determining the Commission's powers, the correct approach is to look at the powers of the Commission to deal with disputes in the statutory context and then look to see whether those powers have been limited or constrained by the terms of the enterprise agreement.

• [18] The AIPA submitted that although clause 47 of the Agreement contains some limitations such as limiting the Commission's powers to compel production of documents, compel the attendance of persons at a hearing, and to make interim or status quo orders, it does not otherwise limit the Commission's powers to inform itself in the manner sought by the AIPA.

• [19] The AIPA submitted that although its application seeks to intervene in the dispute, it is not seeking to be an 'intervener' in the common law sense. Rather, the AIPA is seeking to heard in relation to the proper construction of the grievance procedure in the Agreement in circumstances where it has been a bargaining representative for, and is covered by, the Agreement.

• [20] The AIPA submitted that the Commission should exercise its discretion to allow the AIPA to be heard, noting that approximately 90% of employees covered by the Agreement are members of the AIPA, and the employees and members of the AIPA have historical knowledge about the terms in of the Agreement in dispute. In support of its application to be heard, the AIPA cited the decision of a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 (Mt Arthur), where the Full Bench granted leave to intervene to five unions and employer organisations even though none of those organisations were covered by the relevant enterprise agreement.

• [21] Qantas submitted that the present proceeding before the Commission is one of 'private arbitration', and with reference to relevant authorities[1] submitted that the Commission's powers to arbitrate are conferred by the terms of the enterprise agreement.

• [22] Qantas submitted that when the Commission exercises powers in the resolution of disputes by way of private arbitration, it is exercising only such powers as the parties to the dispute have agreed to confer upon it. Accordingly, the question before the Commission is whether the parties have conferred upon the Commission the power to permit "intervention" by the AIPA (or any other stranger to a dispute).

• [23] Qantas referred to the meaning of "intervention" at general law that once a person is accepted as an intervener, they become a party to the proceeding with all of the privileges of a party.[2] Qantas submitted that by making the application, the AIPA is seeking to make itself a party to the dispute.

• [24] Qantas submitted that the Commission does not have the power to permit the AIPA to "intervene." Qantas submitted that clause 47 of the Agreement is inconsistent with the notion that the Commission could permit the AIPA (or any stranger) to become an "intervener" for six reasons:

(i) The chapeau to clause 47.2 makes it clear that these steps must be followed and the mandatory preconditions are inconsistent with the notion that a person could circumvent those steps by applying directly to the Commission for the "privileges of a party" and the AIPA has not satisfied the preconditions in clauses 47.2.1-47.2.2;

(ii) That clause 47.2.4 operates on the basis that the only participants in any arbitration will be the parties to the dispute that has risen as contemplated by the chapeau. The AIPA's participation in the arbitration - as an intervener, and in effect a party is inconsistent with clause 47.2.4;

(iii) Clause 47.2.5 sets out an exhaustive list of substantive actions that the Commission "can" take if a dispute is referred to the Commission to resolve through private arbitration. If a substantive power (such as a power to permit a third party to "intervene" in a private arbitration) is to be exercisable, then it must be included in the list in clause 47.2.5. That clause 47.2.5 does not include a power to permit a stranger to "intervene" means that such a power is not conferred upon the Commission. Qantas submitted that the exhaustive list in clause 47.2.5 does not include "actions" that are so obvious that they go without saying such as the Commission issuing timetabling directions. However, on this point Qantas also submitted that the limitations set out in clause 47.2.9 were necessary so that the conferral in clause 47.2.5(f) is not construed as allowing the Commission to do the things in clause 47.2.9;

(iv) Even if the Commission had the powers in s.590, those powers relate to the Commission "informing itself" and that is conceptually distinct from a power to permit a party to intervene merely because that party wants to advance its interests (or those of its members). Furthermore, the AIPA has not identified any matter that Captain Butt or Qantas will not fully address;

(v) In response to the AIPA's application stating that the resolution of the dispute is "not confined to the interests of Captain Butt", Qantas submits that Clause 47 is directed to the resolution of a particular dispute between particular parties. It is inconsistent with that process for the Commission to permit a stranger to intervene and expand the scope of the dispute; and

(vi) Clause 47 must be construed in the context of s.577(1)(b) of the FW Act which requires the Commission to perform its functions in a manner that is quick and informal. Qantas submits that the effect of the AIPA's submissions is that all disputes arising under clause 47 risk being transformed into a multi-party process in which the parties to the dispute are compelled to address the strangers to the dispute. Qantas submits that is the antithesis of quick, informal dispute resolution.

• [25] In the alternative, Qantas submitted that even if the Commission had the discretion to permit AIPA to intervene, the Commission should not do so for the following reasons:

(i) The AIPA has not identified anything that it can usefully add or explained how its involvement would assist the Commission;

(ii) The AIPA's involvement would be inimical to the evident purpose of clause 47 - that is to provide for a quick and informal dispute resolution procedure;

(iii) The delay caused by the AIPA's application tells against any grant of permission to intervene; and

(iv) The Commission should not exercise its arbitral powers in such a way as to expand or inflame the existing dispute citing the decision of the Full Court of the Federal Court of Australia in United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FCAFC 94 at [95].

• [26] Qantas cited the decision of the Commission in United Firefighters' Union of Australia v Fire Rescue Victoria [2023] FWC 512 which concerned an application by the Victorian Minister for Emergency Services to intervene in a dispute before the Commission. In that decision, Wilson C found, except for one matter going to jurisdiction, that the parties to the dispute had put sufficient information before the Commission, and that the submissions of the Minister would not particularly advance the case. The Commission found this weighed against granting the Minister leave to intervene. Qantas submitted that the reasons advanced on behalf of the Minister were reminiscent of some of the submissions advanced by the AIPA and that the Commission should ask itself: can the AIPA inform the Commission in a way that it will not be otherwise informed? Qantas submitted that the AIPA has not pointed to any matter that neither Captain Butt nor Qantas have addressed or are likely to address.

• [27] Qantas submitted that the decision in Mt Arthur, in which leave was granted unions and employer organisations to intervene in a dispute, can be distinguished from the present proceedings on the basis that the Commission's powers in Mt Arthur were not limited by the relevant dispute settlement procedure.

• [28] Qantas also submitted that insofar as the authorities state that parties are presumed to take the Commission as they find it, the words "can take any or all of the following action" in clause 47.2.5 rebuts that presumption and limits the powers that the Commission can exercise.

• [29] The AIPA submitted that the Commission has the power to arbitrate the dispute and the limitations in clauses 47.2.5 and 47.2.9 are not material to the AIPA's application to intervene.

• [30] The AIPA submitted that the powers of the Commission are available to it unless they are qualified specifically by the terms of the dispute settlement procedure in the enterprise agreement: UFUA V FRV (Full Court) at [27].

• [31] The AIPA submitted that the dispute concerns the operation of the grievance procedure, which concerns all employees covered by the Agreement, and the AIPA's historical involvement in the negotiation of the Agreement will assist the Commission.

• [32] In written submissions, Captain Butt stated that he did not support or oppose the Interlocutory Application. No oral submissions were made on behalf of Captain Butt at the hearing.

• [33] The issue to determine in these proceedings is whether the Commission has the power to grant leave to, or to permit, a third party to intervene in a dispute that has been referred to the Commission for resolution under clause 47 of the Agreement, and specifically whether the parties have limited the Commission's powers in clause 47.2.5. Although the AIPA have used the term "intervene" it is clear from the Interlocutory Application that the AIPA is not seeking to be a party to the dispute. Rather, the AIPA is seeking that the Commission exercise powers under ss.589 and/or 590 to allow it to be heard in relation to the dispute.

• [34] There was no dispute between the parties, and I agree, that the source of power for the Commission to deal with a dispute arising under an enterprise agreement is found in the terms of the Agreement, and that ss.595(1) and 739(4) authorise the Commission to act upon the parties' agreement.[3]

• [35] Furthermore, it is well established that where arbitral powers are conferred upon the Commission by a dispute settlement procedure in an enterprise agreement, the Commission is exercising powers of private arbitration and, unless they are qualified specifically by its terms, the Commission is presumed that in the discharge of its function as a private arbitrator, it shall have available to it such other powers that it enjoys under the FW Act.[4]

• [36] It follows that the resolution of the issue for determination turns on the proper construction of the dispute settlement procedure and specifically clause 47.2.5 which states, "the FWC can take any or all of the following actions as it considers appropriate to resolve the dispute."[5]

• [37] The principles relevant to the approach that the Commission should take to the construction of enterprise agreements was set out in the decision of a Full Bench of the Commission in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd[6] (Berri) as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision's place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.

1. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

1. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

1. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

1. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

1. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

1. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

1. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

1. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

1. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

1. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

1. Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.

1. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
2. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

1. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

• [38] In Workpac Pty Ltd v Skene[7], the Full Court of the Federal Court in Skene succinctly restated the principles as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "...turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced."

• [39] Having regard to those authorities, the starting point is to consider the ordinary meaning of the relevant words in the context of which they appear, and whether the clause has a plain meaning or if it is ambiguous or susceptible of more than one meaning.

• [40] In the context of the actions that the Commission can take under clause 47.2.5, the key word is "can." The ordinary dictionary meaning of the word "can" is:[8]

To be able; have the strength, means, authority to;

• [41] In applying the ordinary meaning of the word "can" to clause 47.2.5 of the Agreement, the Commission is able to, or has the authority to, or has the permission to take any or all of the actions listed. A note in the Macquarie Dictionary states that the usage of the word "can" was historically distinct from the word "may" but is increasingly being used in a way that is synonymous with the word "may". The ordinary dictionary meaning of the word "may" is:[9]

• [42] In each case, the ordinary meaning of those words refers to an ability or authority to do something rather than a requirement or obligation that those things must be done or must only be done. Put another way, in the context of the exercise of powers, "can" and "may" generally mean that the exercise of power is discretionary, whereas the words "must" and "shall" mean that the exercise of the power is mandatory.

• [43] Qantas submits that clause 47.2.5 sets out an exhaustive list of substantive actions that the Commission "can" take if a dispute is referred to the Commission and that if a substantive power (such as a power to permit third party to "intervene" in a private arbitration) is to be exercisable, then it must be included in the list in clause 47.2.5. I do not accept that submission.

• [44] In my view, when applying the ordinary meaning of the word "can" in clause 47.2.5, the Commission has the discretion to take any one or more of those actions, but the Commission is not limited to only taking any one or more of those actions. As held by the Full Court of the Federal Court in AMWU v ALS and UFUA v FRV (Full Court), the Commission is presumed to have available to it such other powers as it enjoys under the FW Act unless they are qualified specifically by the terms of the dispute settlement procedure. The use of the words "can take any or all of the following actions" in the chapeau to clause 47.2.5 falls significantly short of a specific qualification to limit the Commission's powers that are available to it in Division 3 of Part 5-1 of the FW Act. If Qantas' submission - that if a substantive power is to be exercisable it must be included in clause 47.2.5 - is correct, then it begs the question as to why it was necessary to include clause 47.2.9 which limits the Commission's powers to issue interim or status quo orders. Qantas' submission that the inclusion of clause 47.2.9 was necessary to ensure that clause 47.2.5 is not construed as not limiting the Commission's powers to make such orders does not assist its case. To the contrary that submission supports the interpretation I have arrived at. Of course, if Qantas is correct that substantive powers must be included in clause 47.2.5, it would also mean that the powers to make orders pursuant to s.593(2) and s.594 would not be available. There may also be question as to whether the Commission has the power hear an appeal of an arbitrated outcome,[10] or whether the Commission has the power to grant permission to Qantas to be represented by a lawyer or paid agent in an arbitration hearing, noting that pilots have an express right to representation under clause 47.2.10 and there is no equivalent express right available to Qantas.

• [45] Notwithstanding my observations as to the potential consequences of Qantas' position, I find the words "the FWC can take any or all of the following actions as it considers appropriate to resolve the dispute" in clause 47.2.5 do not limit the powers of the Commission to those matters set out in that clause. However, in making this finding, I accept that some powers of the Commission have been limited or specifically qualified by the dispute settlement procedure. For example, clauses 47.2.5(c) and 47.2.5(d) specifically qualify (or limit) the Commission's powers under s.590(2)(a) and (c) and clause 47.2.9 specifically qualifies (or limits) the Commission's powers under s.589.

• [46] I now turn to consider whether I should exercise my discretion to grant the AIPA leave to intervene in the dispute.

• [47] Qantas submits that the dispute settlement procedure operates on the basis that only the parties to the dispute will participate in any arbitration and that it is inconsistent with that process to permit a stranger to intervene and expand the scope of the dispute. That submission may have more weight in a private arbitration conducted between two parties in a commercial setting where the outcome does not have any impact on third parties. However, that submission ignores the industrial relations context in which this proceeding arises.

• [48] The dispute referred to the Commission concerns whether disputes about car parking arrangements can be agitated under the grievance procedure in clause 48. The arbitration of the dispute will inevitably involve the Commission determining the proper construction of clause 48 (or parts thereof). The AIPA is a registered employee organisation that is covered by the Agreement, was involved in bargaining for the Agreement, and approximately 90% of the employees covered by the Agreement are members of the AIPA. It is stating the obvious to say that the members of the AIPA (Qantas' employees) will be impacted by the outcome of the arbitration. They are not strangers.

• [49] Furthermore, the AIPA contends that it has historical knowledge regarding the negotiation of the relevant terms of the Agreement and the car parking arrangements at the Mascot Campus. Those are matters that may be relevant in applying the principles set out in Berri in determining the proper construction of clause 48.

• [50] I also do not accept Qantas' submission that the AIPA has not (at this stage) identified anything that it can usefully add or that it has not explained how its involvement would assist the Commission and that this should weigh against the exercise of discretion. The AIPA proposed to provide its submissions on the substantive dispute ahead of the hearing of the Interlocutory Application. Qantas objected to this course, submitting that it would be putting the cart before the horse in that the Commission should first determine whether it has the power to grant leave to a third party. Having objected to the AIPA's proposed course, Qantas cannot now cry foul that the AIPA has not identified or explained (at this stage) how its involvement will assist the Commission.

• [51] Nor do I accept the Qantas' submission that the involvement of the AIPA will expand of inflame the dispute if granted leave to intervene. Qantas pointed to the decision in United Firefighters' Union of Australia v Fire Rescue Victoria[11] where the Full Court of the Federal Court of Australia stated:

To "settle the dispute" includes a consideration of whether the resolution of an issue or the relief sought would resolve or widen and inflame the dispute. A reason of that kind may be brought to bear as a basis for not adopting a course being pressed for by one of the parties. To reason in that way is not to fail to settle the dispute. It is to reach a conclusion as to the way in which the dispute should be settled in the particular circumstances.

• [52] I accept that consideration should be given to whether a particular course adopted in resolving a dispute will expand or inflame a dispute. However, that does not require the Commission to automatically refuse to adopt a particular course if the consequence of adopting the course leads to an expansion and inflammation of a dispute. Rather, the Court held that it may be brought to bear as a basis for refusing to adopt a particular course. In any event, I am not satisfied that the involvement of the AIPA will inflame or expand the dispute beyond the issue of whether car parking arrangements fall within the scope of the grievance procedures set out in clause 48.

• [53] I also do not accept that merely because the AIPA might be granted leave to intervene in this matter that every dispute arising under the Agreement will develop into multi-party proceedings. Whether a third party is granted leave to intervene in any future disputes is a matter for the Commission to consider at that time having regard to the relevant circumstances.

• [54] Finally, I accept that the Interlocutory Application and the AIPA's involvement if granted leave to intervene has caused some delay and that this weighs against the exercise of discretion.

• [55] In weighing up the competing considerations, I have decided to exercise my discretion to allow the AIPA to intervene in the substantive dispute. That the AIPA represents approximately 90% of the employees covered by the Agreement and has knowledge of the negotiation and history of the relevant terms weighs heavily in favour of exercising my discretion. Moreover, as the outcome will affect all parties covered by the Agreement, it is a matter of procedural fairness that the AIPA be given an opportunity to be heard. This also weighs heavily in favour of exercising my discretion. I consider these matters significantly outweigh the impact of any delay that arises from the AIPA's involvement in the proceedings and there is no other matter that weighs against the exercise of discretion to allow the AIPA to intervene.

• [56] If, in the alternative, I had found that the chapeau to clause 47.2.5 limited the Commission's powers in the way Qantas contended, I would have otherwise exercised my discretion to request a representative of the AIPA to attend the arbitration under clause 47.2.5(c) and request the AIPA produce any relevant documents under clause 47.2.5(d).

• [57] I have found that clause 47.2.5 does not limit the Commission's powers to permit a third party to intervene in a dispute referred to the Commission for arbitration and I have decided that I will exercise my discretion to permit the AIPA to intervene in the dispute between Captain Butt and Qantas.

• [58] The matter will be listed for case management and directions. A notice of listing will be issued separately to this decision.

Mr D Stephens, of the Australian Federation of Air Pilots for Captain Murray William Butt.

Mr D Taylor, solicitor for the Australian and International Pilots Association.

[1] UFUA v FRV (Full Court) at [29]; Transit Systems West Services Pty Ltd v Australian Rail, Tram and Bus Industry Union [2020] FCAFC 193 at [32]; Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112 at [56]; Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [12],[33]; Tracey v BP Refinery (Kwinana) Pty Ltd [2022] FWCFB 210 at [31], [45].

[2] Citing Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervenor) [1974] 1 NSWLR 391 at 396; Forestry Tasmania v Brown (No 2) [2007] FCA 604 at [6].

[3] See paragraphs [14], [15], [20], and [21] above and the authorities cited therein.

[4] Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission [2001] HCA 16 at [31]; AMWU v ALS at [57]-[58], [85]; and UFUA v FRV (Full Court) at [26]-[27].

[5] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Cockburn Cement Limited, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2025] FWCFB 201 at [29].

[6] [2017] FWCFB 3005 at [114].

[7] [2018] FCAFC 131 at [97].

[8] Macquarie Dictionary Online (http://www.macquariedictionary.com.au).

[9] Macquarie Dictionary Online (http://www.macquariedictionary.com.au).

[10] See clause 47.2.4 of the Agreement.

[11] [2024] FCAFC 94 at [95].

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