Matter:  FWCFB 4120
Catanzariti VP, Gostencnik DP, Bissett C
CASE PROCEDURES – revoke or vary decision – s.603 Fair Work Act 2009 – Full Bench – application to revoke an order made under s.424 terminating industrial action – since late 2014 and until 7 December 2016 The Australian Workers’ Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the AMWU (collectively ‘the Unions’), had been bargaining with Esso for a proposed enterprise agreement or agreements that would replace the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011 (Longford & LIP Agreement) and the Esso Offshore Enterprise Agreement 2011 (Offshore Agreement) – the AWU organised, and many of its members engaged in, various forms of industrial action directed against Esso – AWU maintained that all such industrial action was protected industrial action – Esso maintained that aspects of the industrial action were not protected action – disputed industrial action included bans on the performance of equipment testing, air freeing and leak testing – Esso obtained a number of orders from the Commission directed to the AWU stopping unprotected industrial action – obtained an order on 6 March 2015 (IA Order) – in contravention of the IA Order, the AWU continued to organise industrial action – Esso commenced proceedings in the Federal Court of Australia – the Court rejected Esso’s claim – Esso appealed to the Full Court of the Federal Court – The Full Court dismissed the appeal on 25 May 2016 – on 21 June 2016, Esso filed in the High Court of Australia, an application for special leave to appeal particular orders of the judgment of the Full Court – on 30 November 2016, the Unions served on Esso notices of intention to take protected industrial action – on 7 December 2016, Vice President Watson made an order to terminate the protected industrial action [PR588352] – the applications giving rise to the Order were made by the Minister for Industrial Relations for the State of Victoria (The Minister) – Esso’s special leave application to the High Court had not, at this stage, been heard – during the course of hearing the Minister’s applications, Esso accepted that the Full Court’s judgment in Esso Australia P/L v Australian Workers’ Union was binding on the Commission at that time – this Full Bench was convened to deal with making an ensuing workplace determination as contemplated by s.266 of the FW Act – on 6 December 2017, the High Court delivered judgment in Esso Australia P/L v The Australian Workers’ Union in which a majority of the Court allowed an appeal by Esso, holding that the industrial action organised by the AWU in relation to a replacement enterprise agreement or agreements for, relevantly the Longford & LIP Agreement and the Offshore Agreement was not protected industrial action subsequent to the AWU’s contravention on 6 March 2015 of the IA Order – Esso has applied under s.603 for an order revoking the Order made by Vice President Watson on 7 December 2016 – The Minister and the Unions oppose revocation – Full Bench held that taking unprotected industrial action should not result in the making of a workplace determination – the discretionary matters which point in favour of the exercise of our discretion to revoke the Order outweigh those going the other way – Order revoked with effect on and from the date on which it was made (7 December 2016) – parties encouraged to engage in immediate discussions with a view to concluding an enterprise agreement to replace the Offshore Agreement – Full Bench prepared to advise the parties in conference as to its views on the likely form of a workplace determination that would have been made – prepared to set out the likely form of a workplace determination that we would have made in a recommendation if the parties provided an indication that they would each accept the recommendation and allow employees the opportunity to vote to approve an enterprise agreement consistent with that recommendation.
Federal Court of Australia, Fair Work Division
Originating Application VID981/2018 filed 10 August 2018 seeking relief under s.562 and s.563(b) of the FW Act and s.23 of the Federal Court of Australia Act 1976.
This matter was heard before the Full Court on 13 November 2018 and judgment has been reserved.