Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd [2019] FCAFC 26

FEDERAL COURT OF AUSTRALIA

Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd [2019] FCAFC 26 Review from: Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) [2018] FWCFB 4120

File number: VID 981 of 2018

Judges: WHITE, LEE AND WHEELAHAN JJ

Date of judgment: 19 February 2019

Catchwords: INDUSTRIAL LAW – application for judicial review of decision of the Full Bench of the Fair Work Commission (FWC) to revoke an order make under s 424 of the Fair Work Act 2009 (Cth) (FW Act) (the s 424 Order) terminating protected industrial action – revocation order made after the High Court had reversed a judgment of the Full Court of the Federal Court holding that industrial action was protected – section 424 Order made before that reversal – whether the FWC had failed to recognise that orders of the Full Court were valid until set aside – whether the FWC committed jurisdictional error in considering that a workplace determination under s 266 should not be made following the taking of unprotected industrial action – whether the FWC committed jurisdictional error by exercising their discretion under s 603 of the FW Act to revoke the s 424 Order when the FW Act allows for the correction of errors in orders by an appeal under s 604 of the FW Act – whether the decision of the FWC was legally unreasonable – whether the FWC denied the Minister procedural fairness – no jurisdictional error by the FWC – application dismissed.

Legislation: Acts Interpretation Act 1901 (Cth) s 13(1) Commonwealth Conciliation and Arbitration Act 1904 (Cth) ss 28(3), 38 Fair Work Act 2009 (Cth) ss 3, 40A, 266, 408, 409, 413, 414, 415, 417, 418, 424, 431, 562, 563, 576, 577, 578, 596, 598, 599, 602, 603, 604-608 Federal Court of Australia Act 1976 (Cth) s 23 Fair Work Commission Rules 2013 (Cth) r 56(2)