Esso Australia Pty Ltd v John Stephens
[2017] FWCFB 3783
•20 JULY 2017
| [2017] FWCFB 3783 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
John Stephens
(C2017/1183)
VICE PRESIDENT CATANZARITI | CANBERRA, 20 JULY 2017 |
Appeal against decision [2017] FWC 900 and order PR590220 of Commissioner Cribb at Melbourne on 14 February 2017 in matter number U2016/2884.
Introduction
[1] Esso Australia Pty Ltd (Esso) has applied for permission to appeal an order issued by Commissioner Cribb on 14 February 2017 (Order). 1 The effect of the Order was to dismiss Esso’s jurisdictional objection to Mr John Stephens’ application for an unfair dismissal remedy application made under section 394 of the Fair Work Act 2009 (Cth)(FW Act). The Commissioner published reasons for the decision embodied in the Order on 14 February 2017 (Decision).2
[2] At the hearing of the appeal before us, Esso sought permission to be represented by a lawyer under section 596 of the FW Act. We were satisfied that the matter was invested with sufficient complexity such that we would be assisted in the efficient conduct of the matter if we allowed Esso to be represented by Mr Pollock, of counsel, and we granted Esso permission to be so represented, pursuant to section 596(2)(a) of the FW Act.
Background
[3] In the Decision, the Commissioner set out a brief chronology of events: 3
• Mr Stephens commenced employment with Esso on 2 June 2008 in the initial position of Offshore Maintenance Technician, Power and Control in Production, based offshore;
• The Esso Offshore Certified Agreement 2006 applied to this role. This agreement was later replaced by the Esso Offshore Enterprise Agreement 2011;
• In November 2011, Mr Stephens received an expatriate rotational assignment job offer as Lead Instrument and Electrical Technician with ExxonMobil Exploration and Production Malaysia. Mr Stephens accepted this offer and commenced the assignment in December 2011;
• The letter, dated 3 November 2011, sent to Mr Stephens indicated that his base salary was based on the current Power and Control Technician II rate. It also stated that, during the assignment, Mr Stephens would be employed as a salaried employee and that his salary would be adjusted in line with any increase in his current enterprise bargaining agreement. The letter also stated that, following the completion of this and any future assignments, Mr Stephens would be returned to a waged position consistent with his skills and interests as well as a position being available at that time;
• In May 2013, Mr Stephens ceased the Malaysian assignment;
• About two months later, Mr Stephens commenced another expatriate assignment in Papua New Guinea (PNG) as an Instrument/Electrical Technician. The letter dated 19 June 2013 set out the terms of the assignment;
• Mr Stephens’ assignment to PNG was terminated from 7 April 2016 and Mr Stephens returned to South Australia whilst Esso began looking for a new position for him. Mr Stephens was paid the same base salary as he had received whilst on assignment in PNG;
• During the two overseas assignments, Mr Stephens remained employed by Esso; and
• On 27 May 2016, Mr Stephens was dismissed by Esso.
[4] Esso objected to the unfair dismissal application subsequently made by Mr Stephens, contending before the Commissioner that Mr Stephens was not protected from unfair dismissal because his annual rate of earnings exceeded the current high income threshold of $138,900 and his employment was not covered by a modern award or enterprise agreement.
[5] Mr Stephens contended that while his annual rate of earnings exceeded the high income threshold, he was covered by the Hydrocarbons Industry (Upstream) Award 2010 Award 2010 (the Hydrocarbons Award) or the Esso Offshore Enterprise Agreement 2011 (Agreement) and, as a result of section 382(b)(i) or section 382(b)(ii) of the FW Act, he is a person protected from unfair dismissal.
Decision under appeal
[6] In the Decision, the Commissioner firstly determined that, at the time of his dismissal, Mr Stephens was not covered by the Agreement. The Commissioner formed the view that when Mr Stephens commenced the abovementioned expatriate rotational assignment job in Malaysia, he became no longer covered by the Agreement and this situation continued during his further expatriate assignment in PNG. The Commissioner noted that when Mr Stephens was repatriated back to Australia from PNG, Esso started the process of identifying a suitable role for him. She also noted that at the time of his dismissal, Mr Stephens had not commenced work in a new position as there was no agreement between the parties in relation to the alternative position which was being offered by Esso.
[7] The Commissioner accepted Mr Stephens’ argument that he was engaged to perform the work of an Offshore Maintenance Technician, based offshore, and that he remained engaged on that basis throughout his employment with Esso. She considered whether or not, at the time of his dismissal, Esso was providing Mr Stephens with work as “neither here nor there” 4 and accepted that the work that he was engaged in during the two international assignments was essentially that of an Offshore Maintenance Technician. The Commissioner explained her finding in relation to the Agreement as follows:
“[42] The specific requirement for coverage under the 2011 Enterprise Agreement is for employees to be engaged in work under the classifications in the agreement and to be employed offshore in relation to the Bass Strait operations. At the time of his dismissal, Mr Stephens was not engaged to perform duties in Bass Strait. Mr Stephens’ contract of employment continued to engage him to perform offshore maintenance technician work. However, the enterprise agreement required this work to be performed in Bass Strait. As Mr Stephens was not in a position where he was working in Bass Strait, I find that Mr Stephens could not therefore be covered by the terms of the 2011 Enterprise Agreement.”
[8] The Commissioner then set out the Hydrocarbons Award’s coverage clause (Clause 4.1) and Schedule B.2.5 of the Hydrocarbons Award:
“4. Coverage
4.1 This industry award covers employers throughout Australia who are engaged in the hydrocarbons industry in respect of work by their employees engaged in the classifications listed in this award, to the exclusion of any other modern award.
B.2.5 Hydrocarbons Industry Modification and Maintenance Trades Employees
A Hydrocarbons Industry Modification and Maintenance Trades Employee is designated as such by their employer, performs all tasks onshore or offshore as directed by their employer and is trade qualified.”
[9] The Commissioner noted it was “common ground” that Esso is an employer covered by the Hydrocarbons Award and that its classification structure provides for Modification and Maintenance Trades employees. She appeared to accept the assertion of Mr Stephens that he fell under Level 4 - Advanced (Schedule B.3.5) of the classification structure.
[10] The Commissioner explained her finding that Mr Stephens was covered by the Hydrocarbons Award and protected from unfair dismissal, as follows:
“[45] The award coverage clause does not specify whether the work engaged in is to be either or both of offshore or onshore or at a specific location (e.g. Bass Strait). However, a Hydrocarbons Industry Modification and Maintenance Trades employee is defined as performing all tasks directed by their employer - onshore or offshore. It is accepted that the work that Mr Stephens was engaged to perform meets the classification criteria in the award for a Modification and Maintenance Trades employee and that Mr Stephens continued to be engaged on that basis throughout his employment with Esso. The classification criteria in the award, unlike the terms of the 2011 Enterprise Agreement, states that the tasks can be either offshore or onshore. Therefore, for these reasons, I find that Mr Stephens is covered by the Hydrocarbons Industry (Upstream) Award 2010.
[46]It was common ground that Mr Stephens was employed by Esso for nearly eight years. Therefore, section 382(a) of the Act has been met. In relation to the requirements of section 382(b), I am satisfied that Mr Stephens’ employment was covered by the Hydrocarbons Industry (Upstream) Award 2010 (section 382(b)(i)). Therefore, the high income threshold is not relevant and so Mr Stephens is protected from unfair dismissal.”
[11] The Commissioner dismissed Esso’s jurisdictional objection and ordered the matter be listed for Arbitration.
Grounds of appeal
[12] Esso’s Amended Notice of Appeal identified three grounds of appeal, namely, that the Commissioner:
1. Erred in finding as a matter of law that the work of Mr Stephens was engaged to perform at the time of the dismissal met the classification criteria for a Modification and Maintenance Trades employee under the Hydrocarbons Award, in circumstances where:
a) That finding was inconsistent with the Commissioner’s finding of fact, consistent with unchallenged evidence, that:
(i) Mr Stephens had ceased his position in PNG on 7 April 2016; and
(ii) At the time of his dismissal, Mr Stephens had neither accepted a new position offered by Esso, nor commenced work in any new position.
b) There was no evidence that Mr Stephens was designated as a Hydrocarbons Industry Modification and Maintenance Trades employee by Esso at the time of his dismissal.
2. In the alternative, the Commissioner erred in finding as a matter of law that Mr Stephens was covered by the Award at the time of his dismissal in circumstances where sections 34(3) and 35(3) of the Act and regulation 1.15 of the Fair Work Regulations 2009 (Cth) (Regulations) did not extend the application of Part 2-3 of the Act to Mr Stephens.
3. Erred by failing to give adequate reasons for each of the findings challenged in Grounds 1 and 2.
[13] In advance of the hearing before us, an outline of submissions had been filed on behalf of Esso and Mr Stephens filed submissions, which he described as a Supplementary Statement, together with a copy of Esso’s Form F3 – Employer Response to Unfair Dismissal Application, some email correspondence passing between the Commissioner and Esso’s legal representatives and a copy of a letter dated 7 April 2016 from Esso to Mr Stephens regarding the cessation of the expatriate assignment in PNG.
[14] In its Amended Notice of Appeal, Esso submitted that it is in the public interest for the Commission to grant permission for the appeal because:
1. Its first ground of appeal raises two related questions of importance and general application:
a) Whether an employment relationship subsists in the period following the cessation of a certain position and the commencement of a new position, in circumstances where the parties objectively intended that the employment relationship continue despite the employee holding no substantive role during that period; and
b) If the answer to that first question is “yes” – whether the employee can be covered by a modern award in the period during which the employee holds no substantive role.
It was further said that, whilst arising in this appeal in the context of international assignments, these two questions have broader application in the context of award coverage of labour hire providers and there is no Full Bench authority on either of them.
2. Its second ground of appeal raises a third question of importance and general application:
• Whether regulation 1.15F of the Regulations can extend modern award coverage to an Australian-based employee (as defined by section 35 of the Act) beyond the circumstance prescribed by regulation 1.15F(2)(b).
It was said there appears to be no first instance or Full Bench authority on this third question.
The Appeal
Esso’s Submissions
[15] Esso characterised its first ground of appeal as asserting that Mr Stephens held no substantive role at the time of his dismissal such that he was not and could not have been covered by the Hydrocarbons Award at that time. Esso submitted it was clear that, at the time of his dismissal, Mr Stephens had neither accepted a new position offered by Esso nor commenced work in any new position and that he had ceased performing work on his expatriate assignment in PNG some seven weeks prior. Esso asserted that, notwithstanding this, there was a mutual intention that an employment relationship would continue.
[16] In this regard, Esso submitted there is a critical distinction between the existence of an underlying employment relationship and the engagement of an employee in a particular position and while, in the ordinary course, those concepts wholly align such that the cessation of a particular position or role will end the employment relationship, that outcome will not necessarily be the case where the parties mutually intend the underlying employment relationship to continue. To illustrate this point, Esso gave the following examples:
• When an employer seeks to identify reasonable redeployment options prior to retrenchment, for an employee whose position is made redundant;
• Periods of suspension; and
• Periods between temporary engagements of labour hire employees.
[17] Esso submitted that when analysing the Commissioner’s Decision on award coverage from that standpoint, there were three species of appealable error that emerged from the Commissioner’s finding that Mr Stephens was covered by the Hydrocarbons Award at the time of his dismissal.
[18] The first species was that there was no substantive position and, hence, no substantive duties against which the Commissioner could assess the application of the Modification and Maintenance Trades Employee classification at clause B.2.5 of Schedule 2 to the Hydrocarbons Award at the time of the dismissal.
[19] As to this, Esso submitted that in order to properly find that Mr Stephens fell within the Modification and Maintenance Trades Employee classification at the time of his dismissal, the Commissioner needed to employ the “principle purpose” or “primary function” test, which involve:
• Ascertaining the duties that Mr Stephens performed (or could be required to be performed) at the time of his dismissal, and the circumstances in which those duties were performed; and
• Conducting a qualitative assessment of Mr Stephens’ duties – in light of, amongst other things, the content of any job description, the actual time occupied in different duties, and the level of importance of various duties in the context of the employer’s overall purpose – to determine the primary function of his role.
[20] Esso further submitted that the Commissioner’s apparent assumption that, because Mr Stephens held an offshore position between 2008 and 2011 that attracted award coverage, he must necessarily have continued to be covered by an industrial instrument throughout his employment was problematic for two reasons:
• It was erroneous because an employee may fall in and out of industrial instrument coverage during their employment as their role changes and a modern award can only cover an employee insofar as (and so long as) the requirements in section 48 of the Act are satisfied; and
• It asked the wrong question because the Commissioner was required to ask (and factually analyse) whether Mr Stephens was award covered at the time of his dismissal and in failing to undertake that analysis, she asked a wrong question and reached a mistaken conclusion, each of which was an error of law.
[21] The second species of error was that there was no evidence to demonstrate that Mr Stephens was designated as a Modification and Maintenance Trades Employee under the Hydrocarbons Award at the time of the dismissal. Esso submitted the Commissioner’s finding that the work Mr Stephens was engaged to perform at the time of his dismissal met the MMTE Classification requirements was made in the absence of any evidence as to the designation requirement of clause B.2.5 of the Hydrocarbons Award and thereby amounts to an error of law.
[22] The third species was that it was not open to the Commissioner to find that Mr Stephens was performing “work” or was an employee “engaged in” a classification, as the coverage clause (4.1) of the Hydrocarbons Award requires. Esso submitted the Commissioner failed to properly construe clause 4.1 and she did not apply it to Mr Stephens’ duties at the time of his dismissal, with both those failures amounting to an error of law.
[23] Esso’s second ground of appeal was in the alternative to its first. The essence of the second ground was said to be:
• Assuming Mr Stephens had to hold a substantive role between the time his expatriate assignment in PNG ended and the date of his dismissal, on the facts found, that role could only have been the PNG role;
• At the time of his dismissal, Mr Stephens had not yet accepted the proposed variation to his contract of employment substituting the PNG role for the proposed onshore role (or any other proposed role);
• Accordingly, at least as a matter of contract, he remained employed in the PNG role (despite Esso not requiring him to perform any of the duties associated with that role between the end of his expatriate assignment in PNG and the date of his dismissal); and
• On this analysis, that period effectively amounts to a period of “garden leave” from his PNG role.
[24] Esso submitted two consequences disclosing appealable error follow. First, neither Part 2-3 of the Act (which deals with modern awards), nor Part 3-2 of the Act (which deals with unfair dismissal) could apply to Mr Stephens as he was not an “Australian-based employee”. This is because:
• Section 34(3) of the Act facilitates extensions prescribed by regulation beyond the exclusive economic zone and the continental shelf to Australian employers and Australian-based employees;
• Section 35(3) of the Act, which defines “Australian employers” and “Australian-based employees”, provides that an employee is not an Australian-based employee if the employee is engaged outside Australia to perform duties outside Australia; and
• The unchallenged evidence was that in the period between when Mr Stephens ceased his Malaysian assignment and commenced his assignment in PNG, he did not return to work in Australia and transferred directly from Malaysia to PNG. The relevant “engagement” for the purposes of section 35(3) was the PNG role and that engagement happened outside of Australia. The fact that Mr Stephens returned to Australia for a number of weeks prior to his dismissal – without performing any substantive duties during that time – is irrelevant. As a consequence, he was not (and could not have been) an Australian-based employee by virtue of section 35(3) at the time of his dismissal.
[25] The second consequence is that,even if Mr Stephens was an Australian-based employee, section 35(3) of the Act would not extend modern award coverage to him because section 35(3) and regulation 1.15F(2)(b) of the Regulations only extend the provisions of Part 2-3 to the area outside the outer limits of the exclusive economic zone and continental shelf for an Australian-based employee in relation to their employer if the same enterprise agreement applies to both of them. The Agreement did not apply to Mr Stephens at the time of his dismissal.
[26] Esso’s third ground of appeal was the failure of the Commissioner to give adequate reasons for each of the findings challenged in grounds one and two. Each of the various inadequacies was said to amount to a separate error of law.
[27] Esso submitted its appeal should be allowed, the Decision quashed and Mr Stephens’ application for an unfair dismissal remedy dismissed for want of jurisdiction.
Mr Stephens’ Submissions
[28] Mr Stephens produced a Statement in which he itemised the aspects of Esso’s submissions with which he took issue and provided a response to them. We have considered this Statement in its entirety, but will not recite it all for the purposes of this Decision.
[29] Mr Stephens submitted that, at the time of his dismissal, he was being paid at the Offshore Maintenance Technician rate with no international assignment benefits and such circumstances resulted in him defaulting to his previously held position of Offshore Maintenance Technician and the award coverage relating to that position. Mr Stephens stated that the fact he did not perform any duties between the end of his expatriate assignment in PNG and his dismissal was solely due to the lack of contact by Esso Australia. He said despite his following up with Esso regarding future arrangements, there was a two week delay by Esso in making promised contact.
[30] As to Esso’s assertion that there was no substantive position or duties against which the Commissioner could assess the application of the Modification and Maintenance Trades Employee classification at clause B.2.5 of Schedule 2 to the Hydrocarbons Award at the time of the dismissal, Mr Stephens stated the employment classification throughout his eight years of employment with Esso was that of Offshore Maintenance Technician. He said this was confirmed on every payslip he received, every other communication pertaining to his employment and his rate of remuneration at the time. Mr Stephens appeared to submit that if there were only an employment relationship in existence at any point, as opposed to him actually being employed, then such a period of employment would have been unpaid and yet he was paid as Offshore Maintenance Technician throughout his entire tenure with Esso.
[31] As to Esso’s submission that there was no evidence to demonstrate that Mr Stephens was designated as a Modification and Maintenance Trades Employee under the Hydrocarbons Award at the time of the dismissal, Mr Stephens submitted there was ample evidence that Esso expressly designated him as a Modification and Maintenance Trades Employee, including the fact that he was clearly identified in the position of Offshore Maintenance Technician on payslips and payment summaries and was paid at the rate for that classification throughout his entire term of employment. Mr Stephens further submitted the Commissioner made it clear during the jurisdictional hearing there was a situation of default to the previous position following a Rotational International Assignment and in his case, there was never a need for default because his employment category had remained unchanged.
[32] As to Esso’s submission that it was not open to the Commissioner to find that Mr Stephens was performing “work” or was an employee “engaged in” a classification, as the coverage clause (4.1) of the Hydrocarbons Award requires, Mr Stephens submitted he performed three weeks’ work at Esso Southbank editing maintenance procedures, which was part of an Offshore Maintenance Technician role before he was instructed by Esso to return home. He stated he was to be contacted during the week commencing 18 April 2016 regarding a new assignment, but that he had to chase Esso up. Mr Stephens submitted Esso could have given him interim work and made contact, but chose not to do so.
[33] There was other material in the Statement of Mr Stephens which drew an objection from Esso on the basis that it was an attempt by Mr Stephens to lead fresh evidence on appeal. Esso submitted the particular evidence Mr Stephens sought to lead was plainly available at the hearing at first instance, where he was represented by Counsel with an instructing solicitor. Ultimately, after having the opportunity to consider his position, Mr Stephens did not seek to rely on paragraphs (7), (8), (45), (46) and (53) of the Statement.
[34] In reply, Esso took issue with the assertion of Mr Stephens that throughout his employment, his payslips referred to him as an Offshore Maintenance Technician. It submitted that the payslips only referred to a location and not a position. 5 Further, Esso submitted that the evidence at first instance was that from the time his expatriate assignment in PNG ended until the date of his dismissal, Mr Stephens returned home and did not perform duties at Esso Southbank editing maintenance procedures, as he had claimed.
Consideration – Permission to Appeal
[35] The Commission will grant permission to appeal if it is in the public interest to do so. 6 The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.7 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,8 the Full Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
[36] Alternately, the second ground for granting permission to appeal is that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 9
[37] In determining whether permission to appeal should be granted, we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
[38] We find that permission to appeal should be granted in this matter. We are of the view that the appeal raises important questions concerning the coverage of the Hydrocarbons Award in circumstances where the Commissioner determined that Mr Stephens was covered by this Award and, therefore, protected from unfair dismissal. We consider this to be an important matter regarding the Commissioner’s approach in making such a determination and, therefore, the dispute arising in this case is a matter of public interest. It is on this basis that permission to appeal is granted.
Consideration – The Appeal
[39] We note, for the purposes of determining this appeal, the Decision of Commissioner Cribb was not discretionary in nature. Rather, the task before Commissioner Cribb was to find whether Mr Stephens was covered by the Hydrocarbons Award and, therefore, protected from unfair dismissal. As such, it is our role as an appeal bench to determine whether the Commissioner erred in finding that Mr Stephens was, in fact, covered by the Hydrocarbons Award.
[40] Having found that Mr Stephens was not covered by the Agreement, the Commissioner was required to determine whether or not Mr Stephens was covered by the Hydrocarbons Award at the time he was dismissed, in order to decide Esso’s jurisdictional objection. 10
[41] The Commissioner was satisfied that Mr Stephens met the classification criteria in the Hydrocarbons Award on the basis that he had been engaged and remained engaged to perform the work of an Offshore Maintenance Technician throughout his career with Esso. In circumstances where the Commissioner found Mr Stephens’ assignment in PNG had ceased on 7 April 2016 and that he had neither commenced in a new position, nor accepted one when he was dismissed by Esso, 11 this conclusion was not open to her. In this respect, the Commissioner fell into error.
[42] We accept that an employment relationship can be ongoing, notwithstanding that an employee may not be engaged in a particular position at a point in time. Labour hire arrangements are a prime example of this. In this case, although still employed by Esso after the cessation of the PNG assignment, Mr Stephens held no substantive role at the time he was dismissed seven weeks later. Therefore, it was not possible for the Commissioner to conduct the necessary qualitative assessment of the set of duties Mr Stephens performed at that time that would enable her to determine the “principal purpose” or “primary function” of his role and conclude whether or not he fell within the coverage and classifications of the Hydrocarbons Award.
[43] Further, in circumstances where Mr Stephens held no substantive role at the time of his dismissal, it was not open for the Commissioner to find that he was designated as a Hydrocarbons Industry Modification and Maintenance Trades Employee, so as to come within Schedule B2.5 of the Hydrocarbons Award. Likewise, as Mr Stephens had no duties and was not performing work at the time of his dismissal, it was not possible for the Commissioner to be satisfied he was performing work in a classification for the purposes of Clause 4.1, so as to come within the coverage of the Hydrocarbons Award.
[44] For these reasons, we have concluded that the Commissioner’s findings and her conclusion that Mr Stephens was covered by the Hydrocarbons Award at the time of his dismissal were not open to her and, therefore, the Decision must be quashed.
[45] The Commissioner found Mr Stephens is protected from unfair dismissal on the basis of her satisfaction that Mr Stephens’ employment was covered by the Hydrocarbons Award. As a result of the error we have identified, this finding cannot stand. There is no dispute Mr Stephens’ assignment in PNG had ceased on 7 April 2016 and that he had neither commenced in a new position, nor accepted one when he was dismissed by Esso. Due to our consequent finding that he was not covered by the Hydrocarbons Award, and there being no other basis for him to fall within the scope of any of the other provisions in section 382(b) of the FW Act, he was not a person protected from unfair dismissal at the time of his termination. The application of Mr Stephens for an unfair dismissal remedy application made under section 394 of the FW Act must, therefore, fail for want of jurisdiction.
Conclusion
[46] Permission to appeal is granted.
[47] The appeal is upheld.
[48] The Decision of Commissioner Cribb is quashed.
[49] The application of Mr Stephens for an unfair dismissal remedy made under section 394 of the FW Act is dismissed.
VICE PRESIDENT
Appearances:
Mr A Pollock, of counsel,for Esso.
Mr J Stephens on his own behalf.
Hearing details:
2017
Melbourne:
16 May.
1 PR590220.
2 [2017] FWC 900.
3 Ibid at [6].
4 Ibid at [41].
5 Appeal Book 465-476, Exhibits JS -13 to JS-18.
6 Fair Work Act 2009 (Cth) s 604(2).
7 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210, [6].
8 [2010] FWAFB 5343, [27].
9 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210, [7].
10 Fair Work Act 2009 (Cth) s 382(b)(i).
11 [2017] FWC 900, [40].
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