Mr Toni Bou Lattouf v Bechtel Australia Pty Limited
[2021] FWC 142
•25 JANUARY 2021
| [2021] FWC 142 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 365 - Application to deal with contraventions involving dismissal
Mr Toni Bou Lattouf
v
Bechtel Australia Pty Limited
(C2020/6751)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 25 JANUARY 2021 |
Application to deal with contraventions involving dismissal - Australian citizen working overseas - jurisdiction - whether dismissed by named respondent - identity of employer at time of dismissal - no dismissal by named respondent - application dismissed
[1] On 2 September 2020 Toni Bou Lattouf (Mr Bou Lattouf or the Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.
[2] The Applicant alleges that he was dismissed as an Operations Analyst by the named respondent, Bechtel Australia Pty Limited (Bechtel Australia or the Respondent) on 14 August 2020, with his dismissal taking effect on 11 September 2020.
[3] Bechtel Australia oppose the application. It filed a response on 15 September 2020 raising a jurisdictional issue.
[4] The jurisdictional issue is that, at the time of dismissal, Mr Bou Lattouf was not employed by Bechtel Australia; not being then employed by that entity, he was not dismissed by Bechtel Australia.
[5] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford 1 requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the FW Act before the Commission can exercise powers conferred by section 368. It is thus necessary to determine the jurisdictional issue for Mr Bou Lattouf’s application to proceed further.
[6] I issued directions on 16 November 2020 and amended directions on 19 November 2020.
[7] I heard the jurisdictional matter by telephone on 10 and 14 December 2020.
[8] Mr Bou Lattouf is an Australian citizen currently resident overseas. He gave evidence and participated in proceedings from North Lebanon.
[9] Both parties were represented.
[10] Mr Bou Lattouf’s representative, although well able to navigate the legal issues arising, advised that he was not a paid agent or legal practitioner and did not require permission to represent the Applicant.
[11] Bechtel Australia sought leave to be represented by a legal practitioner. This was opposed by the Applicant. Having regard to the voluminous materials on file, complexity arising from the jurisdictional issue and the fact that proceedings were being conducted remotely, I determined that efficiency warranted a grant of permission for the Respondent to be represented under section 596 of the FW Act.
[12] On 3 December 2020, one week prior to the hearing, Mr Bou Lattouf sought an order for production of thirteen classes of documents, many of which were employment records of employees of various Bechtel entities. He also sought an adjournment. I declined the adjournment. I adjourned the production application pending its fuller consideration by the Respondent. 2 On 4 December 2020 the Respondent produced certain additional documents though not all sought by Mr Bou Lattouf. The production application was not further pressed.
Facts
[13] I heard evidence from Mr Bou Lattouf and from Mr Adam Churchward, the Regional Human Resources Manager – APAC & South Asia of Bechtel Australia.
[14] Substantial documentary material was brought into evidence through two witness statements of Mr Churchward 3 and three witness statements of Mr Bou Lattouf4.
[15] The evidence in chief was extensive and both witnesses were cross examined. Broadly speaking, the evidence of both on matters of a purely factual nature was reliable. Subject to matters identified below, the facts are largely not in dispute. In dispute is the application of the facts to the law, and inferences to be drawn from facts and divergent opinions expressed in oral evidence and submissions.
[16] Some aspects of Mr Bou Lattouf’s evidence referenced uncorroborated conversations he had in years past with certain persons associated with the Bechtel Group. I do not discount Mr Bou Lattouf’s evidence in these respects, though I approach those aspects with a certain degree of caution given the potential for elapsed time to have blurred his precise recall of words used, and the uncorroborated nature of that evidence.
[17] Where there is disputed evidence, or inexact recall, the documentary record provides, in some instances, an appropriate basis on which to make findings of fact or properly draw inferences.
[18] I make the following findings.
[19] Bechtel operates a global engineering, construction and project management business. Bechtel has established corporate entities in Australia and overseas to undertake this work (collectively, the Bechtel Group). The entities that comprise the Bechtel Group each variously employ persons to undertake work or provide services to employees of relevant entities.
[20] Bechtel Australia Pty Limited, the Respondent in these proceedings, is one such entity. The Respondent is incorporated in Australia.
[21] Two such other entities relevant to these proceedings are Bechtel Global Services Incorporated and Saudi Arabia Bechtel Company. Each are foreign entities. Bechtel Global Services Incorporated is an entity incorporated in the United States of America. Saudi Arabia Bechtel Company is an entity incorporated in Saudi Arabia. 5
[22] Mr Bou Lattouf is an Australian citizen. He graduated from the University of Technology Sydney in 2011. He has also completed some studies and internships in Lebanon.
[23] Soon after graduation, Mr Bou Lattouf took employment overseas with Bechtel. Since 2011 he has worked overseas for Bechtel apart from occasional return visits to Australia between overseas assignments and for personal reasons. Whilst working for Bechtel he has exclusively worked overseas. He has not performed work in Australia for Bechtel. However, at all times he has remained an Australian citizen.
[24] Post dismissal, Mr Bou Lattouf has been living in North Lebanon but is currently registered with the Australian government as an Australian resident intending to return given the global impacts of COVID-19. As Australian authorities have limited arrival numbers from overseas in order to manage COVID-19 risks, Mr Bou Lattouf does not know when he may return.
RAK assignment, Saudi Arabia
[25] In June 2011 Mr Bou Lattouf applied for an entry-level international assignment position with Bechtel. He was (by phone) interviewed and sent a letter of offer by a Ms Philip, an officer of Bechtel Australia (the Respondent in these proceedings). The letter of offer relevantly provided: 6
“3-Jul-2011
Toni Bou Lattouf
Sydney, NSW
Dear Toni Bou Lattouf,
We are pleased to confirm our offer of employment with Saudi Arabian Bechtel Co as a Project controls Reporting/Analysis, Grade-22, on a home country base salary of AUD XX per month. Your working title will be Project Controls Reporting/Analysis. You will be assigned to the Ras Az Zawr Smelter Project reporting to Leonard Stone. Your anticipated start date is pending your satisfying the various contingencies outlined below.
You will be on a long term, camp status, assignment. Your work location will be Ras Az Zawr, Saudi Arabia. Uplifts to base salary, base salary adjustment factor and other payments that apply on international assignment are described in the Recital of International Assignment Conditions, Tax Letter, and approved International Assignment Conditions.
(…)
Sincerely
Nina Philip
Global Mobility Specialist”
[26] The letter of offer had a Bechtel logo at its header and the words “SAUDI ARABIAN BECHTEL CO” at its footer.
[27] Mr Bou Lattouf accepted the offer on the terms proposed. Those terms included International Assignment Conditions which stated: 7
“Your Employer is:
Saudi Arabian Btl Co
Continuous Service Date
Not Applicable”
[28] Mr Bou Lattouf continued to liaise with Ms Philip in the following weeks, including attending (in Sydney) a medical requested as required by the letter of offer. Ms Philip communicated as “Global Mobility Specialist, Bechtel Business Services, Brisbane, Australia”. 8
[29] Mr Bou Lattouf travelled to Saudi Arabia on 31 August 2011 and started working for Bechtel on arrival the next day (1 September 2011).
[30] Mr Bou Lattouf worked on the Ras Az Zawr (RAK) project in Saudi Arabia for the following three years, until May 2014. He reported to Bechtel managers engaged by foreign Bechtel entities, not Bechtel Australia.
[31] On 1 March 2012 Mr Bou Lattouf received an email from a Ms Raeside of “BBS HR Ops Mgr – Asia Pacific” (interpreted to mean Bechtel Business Services Human Resources Operations Manager Asia Pacific) advising him as follows:
“Subject: Revised recital – Entity Change
Employee name
This email is to advise that unfortunately when you mobilised to Saudi Arabia there was an administrative error, and as a result the employment entity on your recital and offer letter is incorrect.
The employment entity for employees with an Australian point of origin working for Bechtel in Saudi Arabia is E9SA Bechtel Australia Pty Ltd.
Please review, sign and return the attached revised recital and offer letter to me at your earliest convenience.
Please note that only the employment entity has changed on this document, and there are no changes to your employment conditions.
Australian Tax
Bechtel Australia has secured eligibility for a 23AF exemption for the Raz Al Khair project, which means that any income earned by Australian tax resident employees of Bechtel Australia from working outside Australia on the project will be exempt from income tax in Australia. A PAYG statement will be issued confirming your exempt earnings from the project in relation to each Australian tax year ending 30 June.
Note that your employing entity does not affect your tax residence status in Australia and therefore if you are not an Australian tax resident your Australian tax obligations should not be impacted by this documentation change.
Australian Superannuation
As an employee of Bechtel Australia Pty Ltd you are entitled to receive 9% superannuation in accordance with the Australian SGC legislation. This will be calculated back to the commencement of your assignment and a catch-up payment will be made. As this is classified as a late payment, in accordance with the legislation Bechtel will need to pay this to the ATO and you will receive a notification from them with instructions on how to claim the funds. For the remainder of your assignment your superannuation will be calculated and paid to the fund monthly in arrears, in accordance with the superannuation act. Please complete and return the attached Australian Super application form or the Choice of Fund documentation if you would like to nominate an alternate super fund for these payments. We need this documentation back before we can make a payment for you.
We apologise for any inconvenience this has caused you. Should you have any questions please do not hesitate to contact me.
Kind regards”
[32] Ms Raeside’s email attached an amended letter of offer dated 24 February 2012 with amended International Assignment Conditions. The letter was in identical terms to the earlier letter of 3 July 2011 except the first sentence was amended to read: 9
“We are pleased to confirm our offer of employment with Bechtel Australia Pty Ltd as a Project controls Reporting/Analysis Grad 22, on a home country base salary of AUD $0000.00 per month
[33] The International Assignment Conditions were in the same form save that they were amended to read: 10
“Your Employer is:
Bechtel Australia Pty Ltd
Continuous Service Date
31 Aug 2011”
[34] Mr Churchward’s evidence 11, which I accept, was that this change in identity of Mr Bou Lattouf’s employer in March 2012 during the RAK assignment was to enable Australian assignees to be able to access taxation benefits under an agreement then reached between Austrade and the Australian government. Access to benefits under that agreement required the Australian assignee to be employed by an Australian entity.
[35] Until the change in employer identity on the RAK project, Mr Bou Lattouf was paid by Saudi Arabia Bechtel Company 12. From March 2012 until completion of the RAK assignment Mr Bou Lattouf was paid by Bechtel Australia.
[36] The International Assignment Conditions attached to the letters of offer of both 3 July 2011 and 24 February 2012 contained the following provision: 13
“Your assignment is for an indefinite period; and will continue until terminated by the relevant Bechtel entity (being in each case either your host location entity or your employing entity) (“Bechtel”) by giving you four (4) weeks written notice, other than where the assignment is terminated immediately for cause (as defined below).” (emphasis in original)
[37] Mr Bou Lattouf signed and returned the letter of offer of 24 February 2012 and the revised International Assignment Conditions.
[38] Mr Bou Lattouf was paid superannuation under Australian law whilst on the RAK project.
[39] Mr Bou Lattouf received no letter of termination upon completion of the RAK assignment on 7 May 2014.
WAS assignment, Saudi Arabia
[40] As the RAK project neared completion, Mr Bou Lattouf accepted a new assignment to the Wa’ad Al Shamal (WAS) project in Taraif Al-Baha, Saudi Arabia. Mr Bou Lattouf was sent new International Assignment Conditions for his signature as well as a schedule of Expected Take Home Pay. 14 These documents were sent under cover of an email of 16 April 2014 by Ms Amanda Leeming of the Bechtel Global Mobility Centre.15 In related email communication with Mr Bou Lattouf (on 6 May 2014) Ms Leeming identified herself as “Global Mobility Specialist Bechtel Australia”.16
[41] The Expected Take Home Pay calculation sheet prepared by Bechtel and sent to Mr Bou Lattouf on 16 April 2014 was headed: 17
“EXPECTED TAKE HOME PAY
AUSTRALIAN ASSIGNEE
To Saudi Arabia…”
[42] Mr Bou Lattouf accepted the offer on the terms proposed. Those terms included International Assignment Conditions which stated: 18
“Your Employer is:
Bechtel Global Services, Inc
Continuous Service Date
31 Aug 2011”
[43] Mr Bou Lattouf gave evidence concerning a phone conversation he says he had with Ms Leeming in early April 2014 in advance of her email of 16 April 2014. I make findings on that evidence in the body of this decision.
[44] After returning to Australia for a break with family between the RAK project and the WAS project, Mr Bou Lattouf travelled back to Saudi Arabia and commenced work on the WAS project from 9 May 2014.
[45] Mr Bou Lattouf worked on the WAS project until April 2015.
[46] Mr Bou Lattouf was paid by Bechtel Global Services Incorporated whilst on the WAS assignment 19.
[47] Mr Bou Lattouf was paid superannuation into his Australian nominated fund whilst on the WAS assignment. Mr Churchward’s evidence 20 was that this was because of internal policy that where an immediate prior assignment was with a different entity, superannuation payments in the following assignment would be maintained.
[48] Mr Bou Lattouf received no letter of termination upon completion of the WAS assignment.
London assignment, United Kingdom
[49] As the WAS project neared completion, Mr Bou Lattouf accepted a new assignment to London, United Kingdom, commencing May 2015.
[50] On 30 April 2015 Mr Bou Lattouf was sent a letter of offer from “Bechtel Limited” (signed by Ms Emma Walters of Human Resources, Bechtel Business Services”) which provided as follows: 21
“30 April 2015
Dear Toni,
We have pleasure in confirming our offer of employment with Bechtel Limited with the Infrastructure Business Line. Details as follows:
…….
Your Point of origin has been changed to London for the duration of your assignment in the UK, once this assignment is complete it will revert back to Sydney, Australia.
……
On transfer to the UK you are no longer eligible to be e member of Bechtel AU Choice of Fund and membership will cease on your transfer to the UK, You are now eligible to join the Bechtel Career Pension plan (details enclosed).
……
Yours sincerely
BECHTEL LIMITED”
[51] Mr Bou Lattouf accepted the offer on the terms proposed.
[52] Mr Bou Lattouf gave evidence concerning a phone conversation he says he had with his then WAS Manager Mr Smith in April 2015 in advance of accepting the offer. I make findings on that evidence in the body of this decision.
[53] Mr Bou Lattouf worked on the London assignment until June 2016.
[54] Mr Bou Lattouf was paid by Bechtel Limited whilst on the London assignment 22.
[55] Mr Bou Lattouf received no letter of termination upon completion of the London assignment.
[56] Bechtel Australia arranged transition travel between the London assignment and Mr Bou Lattouf’s next assignment.
United States assignment
[57] As the London assignment concluded, Mr Bou Lattouf accepted a new assignment to the United States of America based in Reston, Virginia, commencing September 2016.
[58] On 28 July 2016 Mr Bou Lattouf was sent new International Assignment Conditions for his signature. Mr Bou Lattouf accepted the offer on the terms proposed. Those terms included International Assignment Conditions which stated: 23
“Your Employer is:
Bechtel Infrastructure and Power
Continuous Service Date
31 Aug 2011”
[59] In advance of receiving these terms, on 4 July 2016 Mr Bou Lattouf received an email from the “Bechtel Deloitte Engagement Team” advising that “Bechtel has engaged Deloitte to provide you with tax services in connection with your assignment” and outlining the manner in which those services would be delivered.
[60] Mr Churchward’s evidence 24 was that although the 28 July 2016 recital referred to Bechtel Infrastructure and Power as the employer, Mr Bou Lattouf’s work in the United States was not assignment specific and that he was employed whilst in the United States by the United States entity Bechtel Global Services Incorporated.
[61] After returning to Australia from London for a break with family (a break prolonged whilst waiting for visa approval), Mr Bou Lattouf then travelled to the United States.
[62] Mr Bou Lattouf commenced the United States assignment in September 2016. It concluded in November 2017.
[63] Mr Bou Lattouf received no letter of termination upon completion of the United States assignment.
[64] Bechtel Australia arranged the transition travel between the United States assignment and Mr Bou Lattouf’s next assignment. This included return to Australia after a stop-over to visit friends in Lebanon and the UAE.
NPMO assignment, Saudi Arabia
[65] As the United States assignment neared its conclusion, Mr Bou Lattouf accepted a new assignment to the NPMO project in Riydah, Saudi Arabia.
[66] Mr Bou Lattouf was sent new International Assignment Conditions for his signature. 25 These documents were sent under cover of an email of 16 October 2017 by Ms Brenda Lapham of the Bechtel Global Mobility Centre.26
[67] Mr Bou Lattouf accepted the offer on the terms proposed. Those terms included International Assignment Conditions which stated: 27
“Your Employer is:
Bechtel Global Services, Inc
Continuous Service Date
31 Aug 2011”
[68] Upon his return to Australia between assignments, an officer of Bechtel Australia (Ms Laura Butler) assisted Mr Bou Lattouf with his 2017 visa application for return to Saudi Arabia. Included in Ms Butler’s advice to Mr Bou Lattouf was the suggestion that he record his “business address” from which the visa application was made as “Bechtel Australia…Queensland”. 28 Bechtel Australia again assisted Mr Bou Lattouf with arranging the required medical examination (in Sydney).
[69] On 15 December 2017, prior to travelling to Saudi Arabia, Mr Bou Lattouf received an email 29 from Ms Butler asking Mr Bou Lattouf to sign an attached “dummy contract” required by the Saudi authorities to accompany his visa application. Mr Bou Lattouf telephoned Ms Butler as he had not expected to be sent a contract, given that he had already completed the International Assignment Conditions for the NPMO assignment. The contract was stated to be between Mr Bou Lattouf and “Saudi Arabia Bechtel Company”.30
[70] Mr Bou Lattouf gave evidence concerning a phone conversation he says he had with Ms Butler after receiving the 15 December 2017 email. I make findings on that evidence in the body of this decision.
[71] Mr Bou Lattouf signed and return the contract.
[72] Mr Bou Lattouf arrived in Saudi Arabia on 16 February 2018 and commenced work on the NPMO assignment.
[73] Whilst working on the NPMO assignment, Mr Bou Lattouf needed a corporate credit card. He liaised with Bechtel Australia, which issued him a Diners Club card. The credit card statements 31 issued by Diners Club identify “Bechtel Australia P/L” alongside the description “Company name”.
[74] Mr Bou Lattouf was paid by Saudi Arabia Bechtel Company whilst on the NPMO assignment 32.
[75] Mr Bou Lattouf concluded work on the NPMO project on 15 September 2019.
[76] From 16 September 2019 until the date of dismissal (14 August 2020) Mr Bou Lattouf was on unpaid leave 33.
Communication about employment status
[77] At various times during 2019 and 2020, including in light of COVID-19, Mr Bou Lattouf made inquiries of Bechtel about what his pay-out would be were his employment to be terminated on account of redundancy. He directed those inquiries to Mr Churchward, an officer of Bechtel Australia. The emails between Mr Churchward and Mr Bou Lattouf 34 evidence a difference of view over Mr Bou Lattouf’s employment status.
[78] By email to Mr Bou Lattouf dated 12 August 2019 Mr Churchward advised as follows:
“Hi Toni,
No, in your situation although you have an Australian point of origin you would not be eligible for redundancy in Australia as you have no employment relationship with the Australian entity.
I can see that you were originally employed in Saudi Arabia by the Australian entity in order to qualify for the 23AF exemption that was offered to Australians on the Ras al Khair project, however any employment relationship was ended when you went to the UK as a national hire in 2015. That employment relationship is not restarted when you moved your point of origin back to Australia in 2016, you would need to actually work for an Australian entity for that to happen. That’s the reason why you also don’t receive any of the Australian benefit entitlements such as superannuation.
Regards, Adam”
[79] Mr Bou Lattouf replied (13 August 2019):
“Hey Adam,
Great help, I really appreciate you getting back to me on this.
Although I do fully understand the below, but just for my personal curiosity, why would a Bechtel internal process such as hiring me with local conditions in order to give me the role in the UK would deprive me from being still related to my hiring entity/Country and where the Australian labor law would be applicable in my case, knowing that I was hired by the Australian entity in 2011 with a current continuous service of almost 8 years? Why would changing my point of origin internally affect my employment relationship with the Australian entity that hired me when my service is still continuous?
Thanks
Toni”
[80] On 21 April 2020 Mr Churchward replied:
“Hi Toni
My apologies, I did not realize that I had an outstanding action in this regard. Checking back through my emails I see that you had asked why converting to local conditions in the UK would break your relationship with the Australian entity.
When you went to work in the UK you signed a contract with Bechtel Limited in the UK and that contract closed out your Bechtel Australia employment. Generally speaking, whenever anybody changes their point of origin to another country then that country becomes their home base and their substantive employer, so we close out any entitlements in the previous country which is what we did with you. For instance, had you remained employed in the UK for 5 years or even 10 years, we would not have continued to accrue any Australian entitlements during this time as for all intents and purposes you are a UK employee accruing UK benefits. You had a UK point of origin, UK salary, etc so we had no reason to believe that you would ever be tied back to Australia. From an accounting and a statutory compliance point of view it has to be that way as we could not justify accruing benefits for somebody who has no ties.
It's for that reason that we can’t then reactive your Australian entitlements when you changed you’re point of origin back to Australia. Those entitlements are tied to employment on the Australian entity which has not been reactivated. Basically, it’s as if you were re-hired outside of Australia and in those instances we do not provide Australian benefits to employees. I understand this is disappointing and perhaps hard to understand. It’s not something that comes up regularly, generally an employee’s point of origin remains the same unless they gain PR or relocate permanently to another country and it’s unusual to see somebody change their point of origin and then change it back.
None of this impacts on your continuous service with Bechtel as our policies for that allow for continuation of service regardless of point of origin.
I hope this makes sense. I’m happy to discuss further if you like but unfortunately I can’t see how we would be able to reactivate your Australian entitlements give the situation.
Regards, Adam”
[81] On 2 May 2020 Mr Bou Lattouf, interested to ascertain his eligibility for the Australian JobKeeper scheme, further replied:
“Hi Adam
Thank you for your email and for taking the time to reply to me.
As you have rightly pointed out, it is not usual that an employee would change their point of origin and then change it back.
It certainly has never been my understanding or intention to sever ties with the Australian entity.
When my point of origin was changed from Sydney to London by Bechtel HR it was explained to me that this was merely an internal administrative formality that had to be done to satisfy certain local hiring conditions. Moreover, please note that this is not something that I instigated or requested.
Indeed, in spite of what changes to my status were recorded for internal Bechtel administrative purposes, the facts "on the ground" remained as follows:
• I did not ever relocate to the UK;
• My stint in London was my sole UK assignment;
• I do not hold UK citizenship nor a UK permanent visa - and I have always been an Australian citizen and continue to hold Australian citizenship;
• Australia is where home is;
• Australia is where Bechtel always conducts all my medicals before new assignments;
• It is Bechtel Australia that always handles all procedures prior to my new assignments; and
• I continue to carry an Australian corporate card.
I would greatly appreciate you making contact with London's HR and confirming the above (i.e. that the point of origin change to London was Bechtel's decision for internal purposes, without regard for actual circumstances).
I hope that in light of the further context provided in this email you will be able to rectify my status.
I am not entirely sure if I am potentially eligible for the JobKeeper scheme recently announced by the Australian government. If I am eligible, it would be a great help to me if you could look into rectifying my status as soon as possible.
Regards
Toni”
[82] On 18 May 2020 Mr Churchward replied:
“Hi Toni,
Unfortunately I haven’t been able to take any further action on your email. I’ve actually been caught up for the past couple of weeks in the JobKeeper program and assessing Bechtel’s eligibility and our employee registrations. To date, although we have registered our intent to participate and eligible employees have signed their registration forms, Bechtel is still not certain that we qualify under for the JobKeeper guidelines. We will not know for certain until later this week.
With regards to your eligibility, Bechtel did seek advice regarding Australians assigned to overseas entities and those currently in unpaid status who were working out of the country. The advice we received from two of the big financial consulting firms was that Bechtel employees such as yourself (regardless of point of origin and ties to the Australian entity) would not be eligible to participate in JobKeeper as you had to be on the payroll of the Australian entity effective 1st March.
I’ll come back to you on your other questions as soon as I am able.
Regards, Adam”
Termination of employment
[83] On 7 May 2020 Mr Bou Lattouf applied for a position with Bechtel Australia on the Sydney Metro Project. On 1 July 2020 he was advised that he was not the successful candidate.
[84] On 14 July 2020 Mr Bou Lattouf was sent an email from Mr Tony Brower of Bechtel Infrastructure in the following terms:
“Subject: Bou Lattouf – Term
“Toni – per our last conversation, unfortunately we haven’t been able to find an opportunity for you, so we will have to part ways. I let it go a little longer than planned in case there were additional needs on NEOM but that won’t be the case in the short term. Stay in touch and good luck in the future.
Tony Brower
Bechtel Infrastructure
Manager of Project Controls”
[85] The 14 July 2020 email attached a termination letter of the same date. It provided: 35
“Dear Toni,
Notice of termination of employment
The purpose of this letter is to provide you with written notice of your release from Bechtel employment effective 14 July 2020. Unfortunately, we have been unsuccessful in our efforts to identify a new assignment for you.
A Bechtel Release Package will be sent to you shortly, containing details regarding finalisation of your benefits
(…)
Yours sincerely
Tony Brower”
[86] Mr Brower had been Mr Bou Lattouf’s Operational Manger on his final assignment (NPMO project). Mr Brower was neither an employee of Bechtel Australia nor of Saudi Arabia Bechtel Company 36.
[87] Mr Bou Lattouf replied that same day (14 July 2020):
“Dear Tony,
I acknowledge receipt of your email and the attached letter, both dated 14 July 2020.
The letter refers to an immediate effective date of 14 July 2020 (i.e. nil notice period). Kindly review this, as such an effective date leaves me with no time to arrange my affairs (including insurance coverage).
I look forward to receiving the Release Package from you shortly. Could I please ask that this be sent to me no later than 17 July 2020?
Could I also please trouble you to include with the Release Package copies of policies relevant to my Release Package (as I no longer have access to these policies myself).
Finally, I expect that I will soon lose access to my work email so from this point forward please send all communications to [email protected].
Regards
Toni Bou Lattouf”
[88] On 18 July 2020 Mr Bou Lattouf applied for a position with Bechtel Australia on the Western Sydney Airport Project. On 5 August 2020 he was advised that he was not the successful candidate.
[89] On 14 August 2020 Mr Bou Lattouf was further advised of the termination of his employment by email from Mr Brower attaching a termination letter. The letter provided:
“13 August 2020
Dear Toni,
NOTICE OF TERMINATION OF EMPLOYMENT – DATE AMENDMENT
The purpose of this letter is to confirm that your release from Bechtel employment and Leave of Absence (LOA) status has now been amended to 14 August 2020. This letter is supplemental to the letter you received on 14 July 2020, providing written notice of your release from Bechtel employment on that date. Unfortunately, we have been unsuccessful in our efforts to identify a new assignment for you and your employment at Bechtel will be terminated, effective 14 August 2020.
A Bechtel Release Package is included in this notice and contains details regarding finalisation of your benefits.
……
Yours sincerely
Tony Brower
Manager of Project Controls – Infrastructure”
[90] The termination letters of 14 July 2020 and 13 August 2020 had a Bechtel logo at their header and the words “Bechtel Global Services, Inc” at their footer.
[91] The final payslip provided to Mr Bou Lattouf on termination identified Saudi Arabia Bechtel Co as his then employer 37.
[92] Following the termination, Mr Bou Lattouf checked his superannuation statements. He identified that the last payment of superannuation on his behalf into an Australian fund was on 10 June 2015 (the end of the WAS assignment / start of the London assignment).
[93] He filed these proceedings on 2 September 2020.
Submissions
[94] Bechtel Australia submit that Mr Bou Lattouf was not its employee at the time of dismissal. Not being then employed by that entity, it contends that he was not dismissed by Bechtel Australia.
[95] It contends that as proceedings can only be brought under section 365 of the FW Act against the employer alleged to have contravened the FW Act by taking adverse action (dismissal), the application is beyond the Commission’s jurisdiction and should be dismissed.
[96] Bechtel Australia submit that the evidence of Mr Churchward, the documentary evidence and aspects of the evidence of Mr Bou Lattouf support this conclusion. In particular it submits:
• Mr Bou Lattouf entered into separate contracts of employment with respect to each assignment. There was no continuing or underlying contract of employment between assignments because Mr Bou Lattouf did not work nor was paid between assignments;
• the contract of employment from which Mr Bou Lattouf was terminated was that relating to his final assignment. That was a contract with Saudi Arabia Bechtel Company. Mr Bou Lattouf did not work for and was not paid by Bechtel Australia during his final assignment or at the time of dismissal;
• in the alternative, Mr Bou Lattouf was dismissed by the entity that communicated his letter of termination, Bechtel Global Services, Inc;
• Mr Bou Lattouf had no contract of employment with Bechtel Australia at the date of dismissal and could not as a matter of law and was not as a matter of fact dismissed by Bechtel Australia. It matters not that at some earlier time (2011 to 2014) Mr Bou Lattouf had a contract of employment with Bechtel Australia;
• Mr Bou Lattouf signed separate International Assignment Conditions for each overseas assignment and those conditions expressly identified the name of his employer for the purposes of each assignment and that name changed from assignment to assignment, and was not after May 2014 Bechtel Australia; and
• in any event, the geographical application of the FW Act does not extend to a person working overseas such as Mr Bou Lattouf.
[97] Mr Bou Lattouf submits that he was employed by Bechtel Australia at the time of dismissal and thereby dismissed from employment by the Respondent. Without being exhaustive, he relies on the following:
• he came to be employed by the Bechtel Group in 2011 by applying for a position advertised by Bechtel Australia and by liaising with Bechtel Australia;
• Bechtel Australia was expressly identified as his employer during his initial overseas assignment. The representations made to him in the email received from Ms Raeside in 2012 had the effect of establishing that Bechtel Australia could be and was his employer whilst on overseas assignments. The representations made were not limited to the first assignment. He relied on the representations throughout his employment;
• given that Bechtel Australia was his employer during the first assignment, and given that he never received a notice of termination of employment at the conclusion of each assignment, his employer throughout each assignment and between assignments remained Bechtel Australia;
• on three occasions in conversation with officers of Bechtel (Leeming 2014, Smith 2015 and Butler 2017) he was led to believe that the documents he was being asked to sign for the purposes of a future assignment were administrative requirements only and did not alter his status, and he relied on those representations;
• officers of Bechtel Australia provided support to him prior to and during transition between assignments, including support for required medical examinations, support for visa services and support for travel and accommodation arrangements. They also sent him relevant documents including the International Assignment Conditions and his corporate credit card;
• he received superannuation under Australian law for certain assignments beyond the first assignment; and
• both he and Bechtel referred to his overseas work as an “assignment”. The proper construction of the word “assignment” is that of a ‘secondment’, meaning that Mr Bou Lattouf travelled to perform work in different overseas locations under an underlying contract of employment with Bechtel Australia, not under new contracts of employment. The meaning of the word “assignment” and references to him as an “Australian assignee” is that he was on an overseas secondment or placement, not newly employed on each occasion.
[98] In the alternative, Mr Bou Lattouf submits that if he was employed by a foreign Bechtel entity at the date of dismissal, then he was jointly employed by that entity and Bechtel Australia.
Consideration
[99] Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[100] Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[101] It follows that, for the purposes of an application under section 365, a dismissal is required to have occurred from a contract of employment between the person dismissed and their employer. It needs to be a dismissal by the employer in the sense of the dismissal being “on the employer’s initiative” or caused by “conduct engaged in by the employer”. It is that employer which must be the Respondent to proceedings as it is only that employer against whom an application under section 365 of the FW Act may be brought.
[102] Was Mr Bou Lattouf employed by Bechtel Australia at the date of dismissal (14 August 2020) and was he was dismissed by Bechtel Australia on that date?
Identify of employer at date of dismissal
[103] Whether a person is an employee of a particular entity at a given time is a combined question of fact and law. This question must be determined on an objective basis, not a subjective belief.
[104] I have concluded that Mr Bou Lattouf was not employed by Bechtel Australia at the date of dismissal, for the following reasons.
Terms of assignment
[105] Firstly, each assignment undertaken by Mr Bou Lattouf constituted separate employment contracts. This is evidenced by the fact that:
• Separate terms of engagement were offered and accepted by Mr Bou Lattouf in advance of each overseas assignment. Those terms were contained in International Assignment Conditions signed by Mr Bou Lattouf and, with respect to the NPMO assignment, the International Assignment Conditions and a subsequent contract of employment;
• The International Assignment Conditions expressly identified a different employer for the purposes of each assignment. Save for the variation to the name of the employer for the first (RAK) assignment (discussed below) and the NPMO contract (discussed below), his employer was the Bechtel entity identified on each of the International Assignment Conditions he signed and returned. These were:
RAK assignment: (as varied) Bechtel Australia;
WAS assignment: Bechtel Global Services Inc;
London assignment: Bechtel Limited;
United States assignment: Bechtel Infrastructure and Power 38; and
NPMO assignment: (as varied) Saudi Arabia Bechtel Company.
• The International Assignment Conditions expressly contemplated a series of separate engagements with distinct Bechtel entities (“will continue until terminated by the relevant Bechtel entity” 39), not one underlying contract.
• The terms of engagement of each assignment, including remuneration, were specific to each assignment.
Payment on assignments
[106] Secondly, Bechtel Australia neither engaged, paid or accrued the benefit of Mr Bou Lattouf’s services whilst working on assignments after his first assignment including his final assignment, being the NPMO project. Mr Bou Lattouf was not paid by Bechtel Australia whilst working on any assignment after May 2014. 40 During the subsequent London, United States and NPMO assignments Mr Bou Lattouf was paid by the Bechtel entity identified as his employer on the relevant International Assignment Conditions or (in the case of the NPMO project as per the signed contract) Saudi Arabia Bechtel Company. This is apparent from payslips provided to Mr Bou Lattouf during the course of his assignments.41 Mr Bou Lattouf’s evidence was that he did not particularly pay attention to what was recorded on his payslips.42
Direction and supervision
[107] Thirdly, at no time between 2011 to 2020 inclusive did Mr Bou Lattouf work under the direction or supervision of officers of Bechtel Australia. 43 He performed worked under the direction and supervision of officers of the relevant foreign entity or entities within the Bechtel Group.
Work performed for benefit of foreign entities
[108] Fourthly, whilst working overseas, other than for the RAK assignment, there was no contract under which Mr Bou Lattouf provided his labour to Bechtel Australia or for its benefit. Nor did he do so during periods of transition. Whilst working, Mr Bou Lattouf worked for the benefit of the relevant foreign entity or entities within the Bechtel Group.
Mobility services
[109] The evidence is that after the RAK assignment, the Australian entity (Bechtel Australia) provided mobility services to Mr Bou Lattouf during periods of transition between assignments. These were services to facilitate the provision of future work.
[110] I do not accept that the provision of these services by officers of Bechtel Australia (travel, accommodation, medicals, visas) were evidence of an underlying contract of employment with Bechtel Australia. The Australian entity of Bechtel provided these services to Mr Bou Lattouf because he was designated as an ‘Australian assignee’; that is, he was an Australian citizen with (other than for the London assignment) an Australian port of residence. Mr Churchward’s evidence, 44 which I accept, was that human resources services provided to an Australian assignee were consistent with the Bechtel global mobility model of service provision and that no alignment exists under that model between the employing entity of the relevant human resources personnel providing the mobility services and the employing entity of the Australian assignee. Viewed in this context, the fact that the human resources officers of Bechtel Australia providing those services to Mr Bou Lattouf had access to his employment records with the various Bechtel entities is neither remarkable nor indicative of a singular employment relationship.
[111] For these reasons, the provision of mobility and transition services did not constitute a contract of employment nor did it give effect to terms of a contract of employment between Mr Bou Lattouf and Bechtel Australia.
Citizenship and port of origin
[112] That Mr Bou Lattouf was an Australian citizen with (other than for the London assignment) an Australian port of residence and returned to Australia after each assignment is not an indication of a contract of employment or an underlying contract of employment with the Australian entity. Neither Australian citizenship nor an Australian port of origin nor return to Australia after overseas work created a presumption to this effect nor was inconsistent with Mr Bou Lattouf having entered contracts of employment with non-Australian entities for his overseas work. The evidence is that Bechtel attributed a port of origin to an assignee to “determine base compensation, retirement plans, vacation accruals and other policies such as tax equalisation, where applicable” 45. Mr Bou Lattouf’s designated port of origin was (other than for the London assignment) Australia. Bechtel applied that designation for the stated purposes. It did not apply that designation in a manner that usurped the express identification of Mr Bou Lattouf’s employing entity on overseas assignments.
“Assignment”
[113] That Mr Bou Lattouf worked, in the words of the International Assignment Conditions, on “assignment” and was an “Australian assignee” was not indicative of an underlying contract of employment under which he was simply placed in various overseas locations. The term “assignment”, in abstract, has a neutral meaning. Depending on context, it is capable of being a term that references a separate contractual engagement whilst, in a different context, is a term capable of referencing multiple placements under a singular or underlying contract. In the circumstances of this matter, the facts are that separate agreements were expressly entered into in advance of each assignment. There was no express contract of an underlying nature. In those circumstances, the word assignment, read in context, was a reference to a separate overseas engagement not contractually connected to the former engagement other than the express provision that Mr Bou Lattouf’s service within the Bechtel Group was recognised as continuous.
Termination of assignments
[114] That Mr Bou Lattouf was not given notice of termination at the conclusion of each assignment does not alter this conclusion. Whilst failing to do so was inconsistent with the obligation of the relevant Bechtel entity under the International Assignment Conditions, the conduct of Bechtel and Mr Bou Lattouf in entering into a fresh set of International Assignment Conditions prior to each assignment and his conduct in then travelling to the new overseas location and working under those terms was conduct that constituted acceptance that his immediately prior engagement had ceased.
Continuity of service
[115] Whilst Mr Bou Lattouf’s service was considered by Bechtel as continuous from the commencement of his first assignment until his termination notwithstanding different employer entities being specified for the purposes of multiple assignments, the evidence 46 is that this was a product of Bechtel policy to render service continuous. Whilst this practice is not inconsistent with the existence of a singular underlying contract of employment, it is equally not inconsistent with Bechtel applying its stated policy when an employee was engaged on successive assignments with different entities within the Bechtel Group. Similarly, the fact that Mr Bou Lattouf was given a common employee number for internal reference purposes throughout his periods of service was an administrative practice, not evidence of a singular employment contract.
Raeside representations
[116] Nor do I consider that the email of Ms Raeside of 1 March 2012 had the effect of establishing a continuing contractual term between Mr Bou Lattouf and Bechtel that in respect of all future work in Saudi Arabia (if any) he would be employed by Bechtel Australia so long as he retained an Australian point of origin. Leaving aside the unreality of a representation made in March 2012 binding or being intended to bind future (unknown) contracts between the parties, the conduct of both Bechtel and Mr Bou Lattouf subsequently tells against such a construction. Mr Bou Lattouf entered into two subsequent agreements for work in Saudi Arabia (the WAS project April 2014 and NPMO project October 2017) and in respect of both assignments the International Assignment Conditions he was provided, signed and returned made no reference to Bechtel Australia. In contrast, each made express reference to his employer being an entity other than Bechtel Australia.
[117] Given this, the proper construction of the Raeside email of 2012 is that it was a statement of then existing intention concerning the then project in Saudi Arabia, the RAK assignment. It did not purport to nor could be an expression of Bechtel’s ongoing conduct or future intent.
Conversations with Leeming, Smith and Butler
[118] Mr Bou Lattouf relies on three conversations he says he had with Bechtel officers at different times in the decade prior to his dismissal to advance his contention of an underlying contract with Bechtel Australia. In each of these respects his evidence was uncorroborated and must be considered with some caution given the likelihood of precise recall being blurred by elapse of time and that no contemporaneous written record or notes exist of such conversations.
[119] I accept that conversations of some type with the relevant officers more probably than not occurred. The second at least (with Mr Smith) is not an invention for the purposes of these proceedings though not necessarily in the exact form deposed by Mr Bou Lattouf or having the effect he contends.
[120] With respect to the Smith conversation of April 2015, Mr Bou Lattouf’s email to Mr Churchward of 2 May 2020 referred to his understanding that the designation of the United Kingdom as his point of origin for the purposes of the London assignment was “explained to me as an administrative formality”. However, on Mr Bou Lattouf’s evidence, 47 Mr Smith did no more than assure him that after the London assignment his point of origin would revert to Australia and that his work in London would not break his continuity of service. The Smith conversation of April 2015 makes no representation about the identity of Mr Bou Lattouf’s future employers within the Bechtel Group beyond the London assignment.
[121] Mr Bou Lattouf’s evidence of the April 2014 conversation with Ms Leeming 48 is that he was answered in the affirmative when he posed the question “so will I still be employed by Bechtel Australia?” The absence of corroboration, the lapse of time since the alleged conversation and these proceedings and the fact that Mr Bou Lattouf signed and returned International Assignment Conditions for the WAS project identifying a different employer only weeks after the alleged conversation, lead me to be unable to conclude, on the balance of probabilities, that the representations said to have been made by Ms Leeming were made in precisely the terms recalled by Mr Bou Lattouf. In any event, any representation made (was I to make a finding in the terms sought) was only made with respect to the WAS project. As Mr Bou Lattouf was not employed on the WAS project at the time of dismissal (the WAS assignment was completed more than five years earlier) the Leeming conversation cannot and does not establish the identity of his employer at the time of dismissal.
[122] Mr Bou Lattouf’s evidence of an alleged conversation with Ms Butler in December 2017 49 does concern the final assignment on which he was engaged prior to dismissal (the NPMO project). However, the absence of corroboration and the significant lapse of time since the conversation and these proceedings (three years) also cause me to treat this evidence as to exact words used with some caution. In any event, even were I to accept Mr Bou Lattouf’s recall as exact, the evidence does not constitute a representation that Bechtel Australia was his employer on the NPMO project. At its highest, it suggests that the contract he was sent and asked to sign identifying Saudi Arabia Bechtel Company as his employer was an administrative formality required by the host country and not the mutual intention of either Bechtel or Mr Bou Lattouf. At the time of the alleged conversation and subsequent signing of the contract, Mr Bou Lattouf and Bechtel had already entered International Assignment Conditions for the NPMO project. Those conditions identified Bechtel Global Services Inc as his employer on the NPMO project.
[123] Given my inability to find that the alleged conversation with Ms Leeming was precisely as attested by Mr Bou Lattouf, I prefer the conclusion that the contract he signed in the days that followed with Saudi Arabia Bechtel Company identified that entity as his employer on the NPMO project. If that is not the case, I conclude that the employer on Mr Bou Lattouf’s final assignment was Bechtel Global Services Inc. There is no evidence from this alleged conversation or related conduct that his employer on the NPMO project was Bechtel Australia.
[124] For these reasons I do not consider that the three alleged conversations (Leeming 2014, Smith 2015 and Butler 2017) establish contractual or enforceable rights as between Mr Bou Lattouf and Bechtel that set aside, read down or substitute for the express terms of the International Assignment Conditions agreed nor establish Bechtel Australia as his employer on the relevant assignments or at the date of dismissal.
Superannuation
[125] Mr Bou Lattouf relies on the fact that he was, from time to time, paid superannuation under Australian law to support his contention that he was paid by Bechtel Australia. This submission is not sustainable. Leaving aside that the fact of a superannuation payment under a contract does not necessarily say anything about the parties to the contract, the evidence is that superannuation contributions under Australian law made on Mr Bou Lattouf’s behalf were not paid beyond June 2015. They were not being paid during his final assignment nor in the period immediately following his final assignment when he was terminated.
Conclusion on identity of employer
[126] Whilst a label parties give to their arrangements is not determinative of the true nature of those arrangements, and whilst Mr Bou Lattouf correctly points to some past decisions of courts where multiple successive engagements terminated neither the employment relationship or an underpinning contract, each matter must be determined on its own facts. This is a matter where the express terms of the assignments and the related conduct of the parties point towards a conclusion that separate employment contracts existed with distinct entities in the Bechtel Group. Mr Bou Lattouf was not on overseas secondment under a singular contract. The employment relationship between Mr Bou Lattouf and Bechtel since May 2014 was not with Bechtel Australia or re-established after his final assignment to be with Bechtel Australia.
[127] In explaining why the express terms of the International Assignment Conditions for the London, United States and NPMO assignments identified a foreign entity as his employer when, in these proceedings he contends to have actually been employed by the Australian entity, Mr Bou Lattouf’s evidence was that “these documents say one thing but I believe they mean something else” 50. Leaving aside whether this subjective belief was held at the time or could have been reasonably held given the relevant conduct of the parties, this matter is to be determined on an objective basis not a subjective belief. The objective evidence, including the express terms and related conduct of the parties (payment for work done on assignment, supervision and direction whilst on assignment and beneficiary of the work performed on assignment), point clearly in the other direction.
[128] For these reasons I conclude that Mr Bou Lattouf was not employed by Bechtel Australia at the date of dismissal, 14 August 2020. The only period during which Mr Bou Lattouf was employed by Bechtel Australia was his first assignment, being the RAK project from September 2011 until 7 May 2014.
Identity of entity which dismissed Mr Bou Lattouf
Termination
[129] Following his final assignment (the NPMO project), Mr Bou Lattouf travelled to Lebanon to reside (awaiting return to Australia) and was, for the following eleven months (September 2019 to August 2020) unpaid by any Bechtel entity.
[130] There is no evidence of contractual relations being given effect to or being created between Mr Bou Lattouf and Bechtel Australia in this period.
[131] In this period Mr Bou Lattouf made inquiries of the terms of a potential redundancy (release) package and his eligibility for the Australian JobKeeper wage subsidy. He directed those enquiries to Mr Churchward. Whilst Mr Churchward was the regional Human Resources Manager for Bechtel Australia APAC & Asia and responded to Mr Bou Lattouf in that capacity, these exchanges are not evidence of a contract of employment between Mr Bou Lattouf and Bechtel Australia. Rather, in context, they are evidence that Bechtel Australia continued to provide human resource and administrative services to an Australian assignee similar to the earlier travel, visa and related services it had provided Mr Bou Lattouf between assignments.
[132] In this period, Mr Bou Lattouf was also advised by his immediate past manager Mr Brower of Bechtel Infrastructure that alternative employment opportunities within Bechtel had not been found, and that he had not been selected for two positions applied for. After providing a further month after 14 July 2020 before his termination would take effect, Mr Brower (by letter dated 13 August 2020) formally advised “we have been unsuccessful in our efforts to identify a new assignment for you and your employment at Bechtel will be terminated, effective 14 August 2020.” The letter of termination was sent on letterhead referencing Bechtel Global Services Inc.
[133] Mr Bou Lattouf was terminated from a contract of employment he had completed with Saudi Arabia Bechtel Company or, in the alternative, Bechtel Global Services Incorporated.
[134] It has not been argued before me whether on or before 14 August 2020 the contract of employment between Mr Bou Lattouf and Bechtel had come to an end on its own terms. I make no finding in that respect. I am satisfied that the letters of 14 July 2020 and 13 August 2020 and related email correspondence between Mr Brower and Mr Bou Lattouf constitute “termination on the employer’s initiative” within the meaning of section 386(1)(a) of the FW Act.
Joint employment
[135] Mr Bou Lattouf advances an alternate contention that if he was employed by a foreign Bechtel entity at the date of dismissal, then he was jointly employed by that entity and Bechtel Australia. I do not accept this submission. Aside from the absence of evidence of a contract of employment existing with Bechtel Australia at the date of dismissal, there is no legal foundation on which a claim of joint employment in respect of the same work can be made or sustained under Australian law. I adopt the observations of Hampton DP in Costello v Allstaff Industrial Personnel (SA) Pty Ltd 51 and the later observations of a full bench of this Commission in FP Group v Tooheys (in the context of triangular labour hire engagement) where it was said:52
“the application of a concept of joint employment to labour hire arrangements would involve a very considerable development of the common law…we do not consider that the Commission’s role as a statutory tribunal extends to engagement in the development of the common law. That is a matter for the courts.”
[136] Such an approach is consistent with observations made by a separate full bench in French Accent: 53
“[26] … Any change to the present approach is a matter for the legislature. Our duty is to continue to apply the established general law approach until legislation or the High Court requires otherwise.”
[137] Not having been employed by Bechtel Australia on his final assignment or subsequently, Mr Bou Lattouf was not dismissed by the Respondent to these proceedings, Bechtel Australia.
Geographical coverage of FW Act
[138] In light of this conclusion, I do not need to deal with the Respondent’s further and alternate submission 54 that the geographical coverage of the FW Act does not extend to an Australian citizen with an Australian port of origin employed by a foreign entity in circumstances where work performed under the relevant contract of employment is performed wholly overseas.
Conclusion
[139] As Mr Bou Lattouf was not employed or dismissed by Bechtel Australia Pty Limited on 14 August 2020, the application against Respondent (Bechtel Australia) is not within jurisdiction.
[140] That being so, and upon the authority of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford further proceedings by the Commission (such as a conference under section 368 of the FW Act) cannot proceed.
[141] The application is therefore dismissed. An order 55 giving effect to this decision is issued in conjunction with its publication
DEPUTY PRESIDENT
Appearances:
D Elachi, on behalf of T Bou Lattouf
M Osbourne, with permission, for Bechtel Australia Pty Limited
Hearing details:
2020
Adelaide (by telephone)
10 and 14 December
Printed by authority of the Commonwealth Government Printer
<PR726128>
1 [2020] FCAFC 152
2 Email 3 December 2020
3 R3, R4
4 A1, A2, A3
5 R3 paragraphs 12, 18 and 58
6 TB3
7 TB3 Attachment
8 TB5 email signature block
9 TB6
10 TB6 Attachment
11 R3 paragraph 13
12 R4 paragraph 7
13 TB6
14 TB7 Attachments
15 TB7
16 TB8
17 TB7 Attachment
18 TB7 Attachment
19 R3 AC-7
20 R3 paragraph 26
21 AC8
22 R3 AC-9
23 TB12
24 R3 paragraphs 40 - 41
25 TB16
26 TB15
27 TB16 Attachment
28 TB18 page 3
29 TB20
30 TB20 Attachment
31 TB22
32 R3 AC-12
33 R3 paragraph 51
34 TB23
35 R3 AC-13
36 Audio transcript 10 December Mr Churchward 2020 part 1 1 hour 24 minutes
37 R3 attachment AC-15
38 Noting Mr Churchward’s evidence that Bechtel Global Services Incorporated was the employer during the United States assignment
39 For example, TB6
40 R3 paragraph 21
41 R3 AC-7, AC-9, AC-12
42 Audio transcript 10 December 2020 Mr Bou Lattouf part 2 at 1 hour 16 minutes
43 Audio transcript 10 December 2020 Mr Bou Lattouf part 2 at 1 hour 17 minutes
44 R4 paragraph 22
45 R3 AC-6 Item K
46 R4 paragraphs 30 to 32
47 A1 paragraph 32
48 A1 paragraph 22
49 A1 paragraph 54
50 Audio transcript 10 December 2020 Mr Bou Lattouf part 2 at 1 hour 35 minutes
51 [2004] SAIRC 13; see also Trakas v BPL Adelaide Pty Ltd [2018] FWC 1530 at [118]
52 FP Group Pty Ltd v Tooheys[2013] FWCFB 9605 at [41] and [44
53 Jiang Shen Cai trading as French Accent v Rozario[2011] FWAFB 8307
54 Written Submissions of Respondent 27 November 2020 paragraphs 28 - 34
55 PR726129
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