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Esso Australia Pty Ltd v Australian Workers' Union

Esso Australia Pty Ltd v Australian Workers' Union

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, NETTLE AND EDELMAN JJ
M185/2016
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] HCA 54
Decision Date: 6 December 2017

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Esso Australia Pty Ltd against the Australian Workers' Union (AWU) concerning protected industrial action under the *Fair Work Act 2009* (Cth). The dispute centred on whether the AWU's prior contravention of a Fair Work Commission order precluded subsequent industrial action from being considered protected.

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.

(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

KIEFEL CJ, KEANE, NETTLE AND EDELMAN JJ GAGELER J (dissent)

Assuming, without deciding, that the analysis in Seven Network is applicable to ss 343 and 348 of the Fair Work Act; that the analysis supports the AWU's contention; and that a belief that equipment testing, air freeing and leak testing are acts within the description "de-isolation of equipment" amounts to a mistake of fact as opposed to a mistake of law or of mixed fact and law[64], the problem with the AWU's further submission is that the evidence adduced below does not go as far as establishing that the relevant officers of the AWU truly believed as a matter of fact that equipment testing, air freeing and leak testing were "de-isolation of equipment". The evidence to which this Court was referred[65] as supporting the AWU's submission at best shows that, in its bargaining with Esso, the AWU maintained that equipment testing, air freeing and leak testing were "de-isolation of equipment" within the scope of the protected industrial action notice and, on that basis, that the bans would be maintained. Although there was evidence that some employees and members of the AWU considered that the bans should be maintained[66], counsel for the AWU could point to no evidence that any of the relevant officers of the AWU, let alone all of the relevant officers of the AWU involved in organising the bans, honestly believed as a fact that equipment testing, air freeing and leak testing were "de-isolation of equipment". Hence, even if it were necessary for the AWU's officers to have had a subjective understanding of the factual circumstances that, viewed objectively, would be seen as rendering the bans unlawful, illegitimate or unconscionable, the AWU has not established, as s 361 requires, that those persons lacked subjective knowledge of those facts. [64]See and compare Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395; [1996] HCA 36; Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J (Gibbs and Stephen JJ, Murphy J and Aickin J agreeing at 3, 11); [1980] HCA 16; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450-452 [24]-[28] per Gleeson CJ, Gummow and Callinan JJ, 477-478 [108] per Hayne J; [2001] HCA 12; Aktiebolaget Hässle v AlphapharmPty Ltd (2002) 212 CLR 411 at 427-428 [36] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; [2002] HCA 59.[65]Esso v AWU (2015) 253 IR 304 at 322-323 [46], 325 [49], 330-331 [58], [61]-[64]. Cf at 335 [78]-[79], 336-337 [84].[66]Esso v AWU (2015) 253 IR 304 at 329 [55], 330 [58]. Conclusion It follows from these reasons that Esso's appeal should be allowed and the notice of contention rejected. Orders 2 and 3 made by the Full Court in VID 435 of 2015 should be set aside. In lieu thereof, it should be ordered that the appeal to the Full Court be allowed in part; declarations 1, 2 and 4 made by the primary judge on 13 August 2015 be set aside; and, in place of those declarations, it should be declared that, as a result of the AWU's contravention of the order of 6 March 2015, the AWU was a person who has contravened an order which applies to it in relation to the proposed agreement and, therefore, by reason of the AWU's failure to meet the common requirement specified in s 413(5), that industrial action thereafter organised by the AWU in relation to the proposed agreement was not protected industrial action. The AWU's appeal should be dismissed. The matter should be remitted to a judge of the Federal Court for the hearing and determination of Esso's claims for pecuniary penalties and compensation.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE, NETTLE AND EDELMAN JJ,

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