Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54

Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54

Section 413(5) of the Fair Work Act 2009 (Cth) disqualifies persons who have previously contravened relevant orders relating to enterprise agreement bargaining from accessing protected industrial action, regardless of whether the orders remain in force at the time of the proposed action. Intent to coerce under ss 343 or 348 does not require knowledge or intention that the conduct is unlawful; it suffices that action was intended to negate another's choice.

Parties
Appellant/respondent: Esso Australia Pty Ltd; Respondent/appellant: The Australian Workers' Union
Jurisdiction
Australia
Judgment Date
06 December 2017
Procedural Posture
Appeal / High Court Appeal From Full Court of the Federal Court
Outcome
Esso's appeal allowed; AWU's appeal dismissed.
Legal Topics
Protected Industrial Action, Statutory Interpretation, Compliance With Orders, Coercion Under Fair Work Act
Industrial Relations Employment Law Protected Industrial Action Statutory Interpretation Compliance With Orders Coercion Under Fair Work Act

Case Brief

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Parties

Esso Australia Pty Ltd

Appellant/respondent

The Australian Workers' Union

Respondent/appellant

Procedural Posture

Appeal / High Court Appeal From Full Court of the Federal Court

Legal Issues

  1. 1 Whether s 413(5) of the Fair Work Act 2009 (Cth) applies to past contraventions of orders or only to orders extant at the time of proposed protected industrial action
  2. 2 Whether intent to coerce under ss 343 or 348 of the Fair Work Act requires knowledge or intent that the act be unlawful, illegitimate or unconscionable

Ratio Decidendi

Section 413(5) of the Fair Work Act 2009 (Cth) disqualifies persons who have previously contravened relevant orders relating to enterprise agreement bargaining from accessing protected industrial action, regardless of whether the orders remain in force at the time of the proposed action. Intent to coerce under ss 343 or 348 does not require knowledge or intention that the conduct is unlawful; it suffices that action was intended to negate another's choice.

Court Disposition

Esso's appeal allowed; AWU's appeal dismissed.

Orders

  • Matter No M185/2016: (1) Appeal allowed. (2) Orders 2 and 3 of the Full Court of the Federal Court of Australia (25 May 2016, VID 435 of 2015) set aside. (3) In their place: (a) Appeal allowed in part. (b) Declarations 1, 2 and 4 of the primary judge (13 August 2015) set aside; and declare that by operation of s...