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

INDUSTRIAL RELATIONS, WORDS AND PHRASES
Judgment type: 
High Court of Australia
Judge(s): 
Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ
Parties: 

Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd

Judgment Date: 
6 December 2017
Catchwords: 

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 s413(5) in relation to subsequent industrial action – Whether s413(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 s343 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". 

Citation: 
[2017] HCA 54