Esso Australia Pty Ltd v The Australian Workers' Union_ Breaches of Orders, Coercion and Protected Industrial Action under the Fair Work Act 2009 (Cth)

In Esso v AWU, the High Court of Australia will consider two important issues concerning the capacity of employees and their representatives (unions) to take protected industrial action when negotiating for enterprise agreements. First, whether a union, subject to orders by a court or tribunal in the context of negotiations, should be barred from taking protected industrial action for the remainder of those negotiations although the circumstances giving rise to the making of the order have since been remedied. The Full Court of the Federal Court of Australia determined that they should not be subject to any such ban. That decision is soundly based, and should be upheld. The second issue is whether action that is unprotected should necessarily be regarded as ‘coercion’ for purposes of s 343 of the Fair Work Act 2009 (Cth). The majority of the Full Federal Court determined that it should be so regarded in all but rare cases. We argue that that is too narrow a view, and that the notion of intent to coerce should be qualified by a requirement that the impugned actions had a meaningful capacity to coerce.