Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758

FEDERAL COURT OF AUSTRALIA

Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758 Citation: Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758

Parties: ESSO AUSTRALIA PTY LTD (ABN 49 000 018 566) v THE AUSTRALIAN WORKERS' UNION

File number: VID 115 of 2015

Judge: JESSUP J

Date of judgment: 24 July 2015

Catchwords: INDUSTRIAL LAW – Industrial action – Whether "protected" under legislation – Whether "nature" of action specified in notice covered action actually organised – How notice would reasonably be understood by addressee – Whether action lost protected status by reason of organising party's failure to comply with service orders made by Fair Work Commission. INDUSTRIAL LAW – Industrial action – Fair Work Commission – Duty to order that industrial action not be organised – Whether limited to action found by Commission to so being organised – Relevance of absence of obligation to "specify the particular industrial action" – Whether order might be read down to preserve valid operation. INDUSTRIAL LAW – Statutory proscription of organising or taking action with intent to coerce another person to exercise or not to exercise workplace right, or to exercise it in a particular way – proscription not applicable to "protected" industrial action – Whether belief that action was protected excludes element of intent in action as organised or taken – Whether such a belief relevant to question whether action unlawful, illegitimate or unconscionable – Action organised by incorporated trade union – Whose intent was relevant – Whether established that that person's intent was not such as was proscribed by the legislation. INDUSTRIAL LAW – Adverse action – Whether taken because person engaged in "industrial activity" – Whether failure to comply with lawful request by trade union to make enterprise agreement on particular terms was engaging in industrial activity – Whether other more specific provisions of legislation ousted this general provision. INDUSTRIAL LAW – Adverse action – Whether taken because party initiated and participated in proceeding in Fair Work Commission. STATUTORY INTERPRETATION – Precedent – Considerations of comity in relation to questions of statutory construction – Decision by a single judge about the meaning and effect of s 413(5) of the Fair Work Act 2009 (Cth) – Where statutory interpretation would not be endorsed in the absence of that judgment – What would be necessary to justify departure from that decision