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

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, NETTLE AND EDELMAN JJ

M185/2016

ESSO AUSTRALIA PTY LTD APPELLANT

AND

THE AUSTRALIAN WORKERS' UNION RESPONDENT

M187/2016

THE AUSTRALIAN WORKERS' UNION APPELLANT

AND

ESSO AUSTRALIA PTY LTD RESPONDENT

Esso Australia Pty Ltd v The Australian Workers' Union The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54 6 December 2017 M185/2016 & M187/2016

ORDER

Matter No M185/2016

1. Appeal allowed.

2. Set aside orders 2 and 3 of the Full Court of the Federal Court of Australia made on 25 May 2016 in Matter No VID 435 of 2015 and in their place order that:

(a) Appeal allowed in part.

(b) Set aside declarations 1, 2 and 4 made by the primary judge on 13 August 2015 and in their place declare that by operation of s 413(5) of the Fair Work Act 2009 (Cth), the industrial action organised by the respondent in relation to a replacement enterprise agreement or agreements for the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011, the Esso Offshore Enterprise Agreement 2011 and the Esso Gippsland (Barry Beach Marine Terminal) Enterprise Agreement 2011, subsequent to the respondent's contravention on 6 March 2015 of the order made by the Fair Work Commission on that date was not protected industrial action.

(c) Appeal otherwise dismissed.

(d) Remit the matter to a judge of the Federal Court of Australia for the hearing and determination of the appellant's claims for pecuniary penalties and compensation.

Matter No M187/2016

Appeal dismissed.

On appeal from the Federal Court of Australia

Representation

F Parry QC with M J Follett for the appellant in M185/2016 and for the respondent in M187/2016 (instructed by Clayton Utz)

H Borenstein QC with P C Rozen for the respondent in M185/2016 and for the appellant in M187/2016 (instructed by Maurice Blackburn Lawyers)