Esso Australia Pty Ltd v Australian Workers' Union

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.