Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72

FEDERAL COURT OF AUSTRALIA

Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72 Appeal from: Application for leave to appeal and appeal: Esso Australia Pty Ltd v The Australian Workers' Union (Federal Court of Australia, VID 115 of 2015, Orders dated 13 August 2015) Esso Australia Pty Ltd v The Australian Workers' Union (2015) 253 IR 304; [2015] FCA 758

File number(s): VID 435 of 2015 VID 470 of 2015

Judge(s): SIOPIS, BUCHANAN AND BROMBERG JJ

Date of judgment: 25 May 2016

Catchwords: INDUSTRIAL LAW – construction of s 418 of the Fair Work Act 2009 (Cth) – powers of the Fair Work Commission under s 418 – such orders are limited to the scope of identified industrial action – primary judge held that orders of the FWC lacking in specificity were invalid – no error in the approach of the primary judge INDUSTRIAL LAW – Fair Work Commission ordered that "de-isolation of equipment" was protected industrial action – dispute between parties as to the practical meaning of "de-isolation of equipment" – primary judge found that the construction to be given to what is protected industrial action is that which a reasonable person in the position of the employer would understand it to mean – no error in conclusion by the primary judge INDUSTRIAL LAW – whether the union was in breach of coercion provisions under the Fair Work Act 2009 (Cth); ss 343, 346 and 348 – two elements to be satisfied to find coercion (Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378) – not necessary to establish the person intended to act unlawfully – not a defence that a person believed their action to be lawful – intent to coerce requires showing negation of choice