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Esso Australia Pty Ltd

Esso Australia Pty Ltd

Case [2018] FWC 6244 10 October 2018

Standing

Stay of Proceedings

Judicial Review

Employment & Labour Law

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[2018] FWC 6244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Esso Australia Pty Ltd
(AG2016/4853)

ESSO OFFSHORE ENTERPRISE AGREEMENT 2011

Oil and gas industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 10 OCTOBER 2018

Application for termination of the Esso Offshore Enterprise Agreement 2011; application to stay or adjourn proceeding pending determination of related judicial review proceeding; application refused.

[1] Beginning in late 2014 and until 7 December 2016, Esso Australia Pty Ltd (Esso) had been bargaining with The Australian Workers’ Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (collectively “the Unions”), in their capacities as bargaining representatives for a proposed enterprise agreement or agreements that would replace, inter alia, the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011 (Longford & LIP Agreement) and the Esso Offshore Enterprise Agreement 2011 (Offshore Agreement).

[2] On 7 December 2016, Vice President Watson made an order 1 pursuant to s.424 of the Fair Work Act 2009 (the Act) purporting to terminate protected industrial action. Notice of this protected industrial action had been given by the Unions, was due to commence on 9 December 2016 and was to be taken in furtherance of proposed enterprise agreements to replacethe Longford & LIP and the Offshore Agreements. The order was made on application by the Minister for Industrial Relations for the State of Victoria (the Minister).

[3] Prior to the making of the s.424 order, Esso lodged an application on 3 August 2016 under s.225 of the Act to terminate the Offshore Agreement. The Offshore Agreement had passed its nominal expiry date on 1 October 2014.

[4] On 9 September 2016, Esso filed material in support of its s.225 application, consisting of an outline of submissions and eight witness statements. In October 2016, the Unions applied for orders for the production of documents from Esso. After a hearing before the Vice President, an order for the production of documents was made. 2 Following the making of the s.424 order Esso applied to adjourn the s.225 application proceedings, and on 8 December 2016, the Vice President adjourned the proceedings sine die with liberty to apply.3

[5] During the course of 2017, a Full Bench of the Commission was convened to deal with making an ensuing workplace determination, to cover inter alia, employees to whom the Offshore Agreement applies, as contemplated by s.266 of the Act. A decision was reserved.

[6] On 6 December 2017, the High Court of Australia delivered judgment in Esso Australia Pty Ltd v The Australian Workers’ Union 4 in which a majority of the Court allowed an appeal by Esso, holding that the industrial action organised by the AWU in relation to a replacement enterprise agreement or agreements for, relevantly the Longford & LIP Agreement and the Offshore Agreement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Esso Australia Pty Ltd [2018] FWC 6244
Case: [2018] FWC 6244
Decision Date: 10 OCTOBER 2018

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Esso Australia Pty Ltd to terminate the Esso Offshore Enterprise Agreement 2011. The dispute arose from issues regarding the agreement's application to employees working offshore, specifically in relation to changes in the industry and the need for updated terms and conditions. The application was heard in the Fair Work Commission, a specialised tribunal under the Fair Work Act 2009, tasked with resolving workplace disputes.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act in relation to the termination of an enterprise agreement. The Commission had to consider whether the application met the criteria for termination under section 241 of the Act, and whether the application was made in good faith. Additionally, Esso sought a stay or adjournment of the proceeding pending the determination of a related judicial review proceeding, which raised issues of procedural fairness and the appropriate forum for resolving the dispute.

In its decision, the Commission found that Esso's application for termination did not meet the criteria under section 241 of the Act. The Commission noted that the application was not made in good faith, as it was based on a misinterpretation of the law and the agreement's terms. The Commission further held that the application to stay or adjourn the proceeding was refused, as it was not in the interests of procedural fairness to delay the resolution of the dispute. The Commission emphasised the importance of parties adhering to the correct legal processes and not seeking to circumvent the appropriate forum for resolving their disputes.

The Commission dismissed Esso's application for termination and refused the application for a stay or adjournment. The decision underscores the importance of parties ensuring that their applications are made in good faith and in accordance with the law. It also highlights the need for parties to follow the correct legal processes and not attempt to bypass the appropriate forum for resolving their disputes. The Commission's decision provides guidance to parties on the proper application of the Fair Work Act in relation to enterprise agreements and the importance of procedural fairness in workplace disputes.

Orders