High Court of Australia

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

The Australian Workers' Union v Esso Australia Pty Ltd

6 Dec 2017

Case Number: M185/2016 M187/2016


Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ


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 person must act with intent that action be unlawful, illegitimate or unconscionable – Whether person must have subjective understanding of factual circumstances rendering action unlawful, illegitimate or unconscionable.

Words and phrases – "coercive action", "common requirements", "compliance with orders", "extant orders", "intent to coerce", "must not have contravened any orders", "past contravention", "protected industrial action", "statutory interpretation", "unlawful, illegitimate or unconscionable".

Fair Work Act 2009 (Cth) – ss 343, 348, Ch 3, Pt 3-3, Div 2.

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