HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, NETTLE AND EDELMAN JJM185/2016
ESSO AUSTRALIA PTY LTD APPELLANT
AND
THE AUSTRALIAN WORKERS' UNION RESPONDENT
M187/2016
THE AUSTRALIAN WORKERS' UNION APPELLANT
AND
ESSO AUSTRALIA PTY LTD RESPONDENT
Esso Australia Pty Ltd v The Australian Workers' Union
The Australian Workers' Union v Esso Australia Pty Ltd[2017] HCA 54
6 December 2017
M185/2016 & M187/2016
ORDER
Matter No M185/2016
1.Appeal allowed.
2.Set aside orders 2 and 3 of the Full Court of the Federal Court of Australia made on 25 May 2016 in Matter No VID 435 of 2015 and in their place order that:
(a)Appeal allowed in part.
(b)Set aside declarations 1, 2 and 4 made by the primary judge on 13 August 2015 and in their place declare that by operation of s 413(5) of the Fair Work Act 2009 (Cth), the industrial action organised by the respondent in relation to a replacement enterprise agreement or agreements for the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011, the Esso Offshore Enterprise Agreement 2011 and the Esso Gippsland (Barry Beach Marine Terminal) Enterprise Agreement 2011, subsequent to the respondent's contravention on 6 March 2015 of the order made by the Fair Work Commission on that date was not protected industrial action.
(c)Appeal otherwise dismissed.
(d)Remit the matter to a judge of the Federal Court of Australia for the hearing and determination of the appellant's claims for pecuniary penalties and compensation.
Matter No M187/2016
Appeal dismissed.
On appeal from the Federal Court of Australia
Representation
F Parry QC with M J Follett for the appellant in M185/2016 and for the respondent in M187/2016 (instructed by Clayton Utz)
H Borenstein QC with P C Rozen for the respondent in M185/2016 and for the appellant in M187/2016 (instructed by Maurice Blackburn Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Industrial relations – Fair Work Act 2009 (Cth) – Protected industrial action – Common requirements for industrial action to qualify as protected industrial action – Where s 413(5) of Fair Work Act requires that persons organising or engaging in proposed protected industrial action "must not have contravened any orders that apply to them" in relation to relevant agreement – Where order obtained from Fair Work Commission requiring union to stop organising certain industrial action – Where union contravened order – Whether union's contravention of order precluded satisfaction of common requirement in s 413(5) in relation to subsequent industrial action – Whether s 413(5) requires only that relevant persons not be contravening orders extant at time of proposed protected industrial action – Whether relevant contraventions limited to contraventions of orders committed in course of organising or engaging in proposed protected industrial action.
Industrial relations – Fair Work Act 2009 (Cth) – Organising, taking or threatening action with intent to coerce contrary to s 343 or s 348 of Fair Work Act – Whether…
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- Case
- [2017] HCA 54
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether a contravention of an order by the AWU, occurring before the organisation of subsequent industrial action, disqualified that action from being protected under section 413(5) of the *Fair Work Act*. This section requires that persons organising or engaging in protected industrial action "must not have contravened any orders that apply to them" in relation to a relevant agreement. The Court also considered whether this requirement applied only to contraventions of orders extant at the time of the proposed protected industrial action, or if it encompassed past contraventions. Additionally, the Court examined the elements of "intent to coerce" under sections 343 and 348 of the Act, specifically whether a person must intend for their action to be unlawful, illegitimate, or unconscionable, and whether they must have a subjective understanding of the factual circumstances rendering the action so.
The Court reasoned that section 413(5) of the *Fair Work Act* imposes a condition that must be met for industrial action to be protected. It held that a contravention of an order, even if occurring prior to the organisation of subsequent industrial action, would mean that the AWU had failed to satisfy this "common requirement." The Court found that the evidence did not establish that the AWU officers genuinely believed, as a matter of fact, that the actions in question constituted "de-isolation of equipment" as claimed. Therefore, even if a subjective understanding of factual circumstances rendering the action unlawful was required, the AWU had not demonstrated that its officers lacked such knowledge.
The High Court allowed Esso's appeal in part, setting aside certain orders of the Full Court. It declared that due to the AWU's contravention of a Fair Work Commission order on 6 March 2015, subsequent industrial action organised by the AWU in relation to replacement enterprise agreements was not protected industrial action, as the AWU had failed to meet the requirement in section 413(5). The matter was remitted to the Federal Court for the determination of claims for pecuniary penalties and compensation.
Orders
Orders of the court
Matter No M185/2016
1. Appeal allowed.
2. Set aside orders 2 and 3 of the Full Court of the Federal Court of Australia made on 25 May 2016 in Matter No VID 435 of 2015 and in their place order that:
(a) Appeal allowed in part.
(b) Set aside declarations 1, 2 and 4 made by the primary judge on 13 August 2015 and in their place declare that by operation of s 413(5) of the Fair Work Act 2009 (Cth), the industrial action organised by the respondent in relation to a replacement enterprise agreement or agreements for the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011, the Esso Offshore Enterprise Agreement 2011 and the Esso Gippsland (Barry Beach Marine Terminal) Enterprise Agreement 2011, subsequent to the respondent's contravention on 6 March 2015 of the order made by the Fair Work Commission on that date was not protected industrial action.
(c) Appeal otherwise dismissed.
(d) Remit the matter to a judge of the Federal Court of Australia for the hearing and determination of the appellant's claims for pecuniary penalties and compensation.
Matter No M187/2016
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, KEANE, NETTLE AND EDELMAN JJ,
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