Creighton, Breen; McCrystal, Shae --- "Esso Australia Pty Ltd v the Australian Workers' Union: Breaches of Orders, Coercion and Protected Industrial Action Under the Fair Work Act 2009 (Cth)" [2017] SydLawRw 10; (2017) 39(2) Sydney Law Review 233 (2024)

Before the High Court

Esso Australia Pty Ltd v The Australian Workers’ Union:

Breaches of Orders, Coercion and Protected Industrial Action under theFair Work Act 2009 (Cth)

Breen Creighton^[∗] andShae McCrystal^[†]

Abstract

In Esso v AWU, the High Court of Australia will consider twoimportant issues concerning the capacity of employees and their representatives(unions) to take protected industrialaction when negotiating for enterpriseagreements. First, whether a union, subject to orders by a court or tribunal inthe contextof negotiations, should be barred from taking protected industrialaction for the remainder of those negotiations although the circumstancesgivingrise to the making of the order have since been remedied. The Full Court of theFederal Court of Australia determined thatthey should not be subject to anysuch ban. That decision is soundly based, and should be upheld. The second issueis whether actionthat 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 soregarded in all but rare cases.

We argue that that is too narrow a view, and that the notion of intent tocoerce should be qualified by a requirement that the impugnedactions had ameaningful capacity to coerce.

AThe National and InternationalContext

In Esso Australia Pty Ltd v The Australian Workers’Union,^[1] the High Court ofAustralia is called upon to determine two important questions relating to thecapacity of employees and their representativeslawfully to take industrialaction to promote and to defend their interests in the context of enterprisebargaining under the Fair Work Act 2009 (Cth) (‘FWAct’). The first question is whether employees and/or theirrepresentatives who have been made subject to an order of a court ortribunal atan earlier stage in negotiations for an agreement are then barred from lawfullytaking further action in pursuance ofthat agreement, even though they havesubsequently observed the terms of the order(s) or the orders are otherwisespent. The secondquestion is whether action by employees that is not protectedunder the FW Act will necessarily, or normally, constitute‘coercion’ for purposes of s 343 of the FW Act.

Part 2-4 of the FW Act provides a framework for the regulation ofterms and conditions of employment through a process of enterprise-levelnegotiation betweenemployers, employees and their representatives. As part ofthis process, employees and employers can, subject to satisfying rigorousprocedural and substantive requirements, take ‘protected industrialaction’ in support of their bargaining positions.

The concept of protected industrial action was first introduced at federallevel by the Industrial Relations Reform Act 1993 (Cth). Before then,effectively all industrial action was unlawful at common law (both as a tort andas a breach of contract) and(frequently) understatute.^[2]

The introduction of statutory protection was partly driven by the logic ofenterprise bargaining as an alternative to the regulationof work relationsthrough centralised conciliation and arbitration. It was also driven by anincreased awareness of Australia’sinternational obligations concerningthe right to strike: notably under art 8(1)(d) of the International Covenanton Economic, Social and CulturalRights,^[3] and the InternationalLabour Organization’s Freedom of Association and Protection of the Rightto Organise Convention, 1948(No87).^[4] This is reflected in s 3(a) ofthe FW Act, which states that the object of providing ‘a balancedframework of cooperative and productive workplace relations’ isto beachieved, inter alia, by laws that ‘take into account Australia’sinternational labour obligations’.

In that context, the statutory protections can be seen either as a formalrecognition of workers’ rights to take industrialaction to protect and topromote their interests in the enterprise bargaining context, or as accordingworkers a ‘privilege’to engage in conduct that would otherwise beunlawful. Viewed through the prism of privilege, the FW Act can be seenas setting the parameters within which that privilege may be exercised, andshould be accorded a strict interpretationto minimise the extent ofinterference with established common law and statutory rights.

The distinction between the two approaches is not just an academic one, asevidenced by the competing interpretations at issue inEsso v AWU:

•Does s 413(5) of the FW Act have the effect that a party thatbreaches an order of the Fair Work Commission or a court in relation tonegotiations for an enterpriseagreement cannot take protected industrial actionfor the life of those negotiations, irrespective of whether the orders are spentor the breach has been remedied?

•If a bargaining representative and relevant employees intend to takeprotected industrial action but inadvertently fail tocomply with the statutoryrequirements, should they be exposed to liability for coercion under s 343 ofthe FW Act?

BThe Dispute

In the context of negotiations for a new enterprise agreement to coverEsso’s oil and gas operations in Bass Strait, the AWUcomplied with theformalities for taking protected industrial action, and issued notices to Essoof its intention to do so. Thesenotices provided that the industrial actionwould include a ban on ‘de-isolation’ of equipment. This is atechnical termreferring to the return of certain equipment to operation after aperiod where it had been disconnected (‘isolated’)for servicing.

A dispute arose between Esso and the AWU about exactly what‘de-isolation’ entailed. Esso claimed that it was limitedto thefinal steps before the machinery was turned back on, while the AWU claimed thatit included steps preliminary to those finalsteps. If the proposed actions ofthe employees did not relate to ‘de-isolation’, then they were notcovered by the noticeof protected industrial action and were not protected,thereby exposing the workers and the AWU to the making of orders under s 418ofthe FW Act and/or remedies in respect of coercion under s 343.

Esso sought and obtained a s 418 order from the Fair Work Commissiondirecting that the alleged ‘unprotected’ action cease.As discussedbelow, the AWU challenged the making of this order in the Federal Court. Essoalso sought a declaration that the Union’sactions subsequent to themaking of the s 418 order constituted coercion under s 343.

CThe Legislative Context

The concept of ‘industrial action’ is defined in s 19 of theFW Act, while protected industrial action is regulated by pt 3-3. Subjectto limited exceptions relating to personal injury, destructionetc of propertyand defamation,^[5] s 415 of the FWAct provides immunity against common law or statutory liability for allindustrial action that is ‘protected’ within themeaning of pt 3-3of the Act. To achieve protection, the action must satisfy a number ofpreconditions, including: observance ofrestrictions on the content ofagreements; obtaining approval for taking protected industrial action though anelaborate ballotingprocess; and giving notice of proposed action in the properform. According to s 413(5), the preconditions also include that thoseproposing to take the protected industrial action ‘must not havecontravened any orders that apply to them and that relateto, or relate toindustrial action relating to, the agreement or a matter that arose duringbargaining for the agreement’.

Unprotected industrial action is not expressly made unlawful by the FWAct, except where the participants are bound by an enterprise agreement thathas not yet reached its nominal expirydate.^[6] However, all participants inunprotected industrial action may be subject to the making and enforcement oforders under ss 418–20of the FW Act, and to the issue ofinjunctions, award of damages etc at common law and understatute.^[7]

The provisions of pt 3-3 are intimately bound up with those of pt 2-4. Thelatter provisions contemplate a scheme of agreement makingthat includes goodfaith bargaining between bargaining representatives in negotiations for anagreement. Failure to observe the goodfaith bargaining requirements can giverise to the making of ‘bargaining orders’ under s 230, breach ofwhich can leadto the imposition of civil penalties (ss 233 and 546) and, inprinciple, to the making of a ‘serious breach declaration’(s 235)that can then trigger an arbitration process culminating in a ‘bargainingrelated workplace determination’ (s269). No such declaration or (bydefinition) determination has been made since the enactment of the FWAct. Section 418 orders are, however, commonplace, and Federal Court ofAustralia proceedings to enforce such orders, while not the norm,are notunusual.

Participation in unprotected industrial action can also run foul of s 343(1)of the FW Act. This provision makes it unlawful for a‘person’ to ‘organise or take, or threaten to organise ortake, any action against another person with intent to coerce theother person, or a thirdperson’^[8] in connection withthe exercise or non-exercise of a ‘workplaceright’.^[9] It is, however,clear from s 343(2) that this proscription does not extend to protectedindustrial action.

There are three important points to note about the substance ofs 343(1):

•First, the ‘action’ does not need to be ‘industrialaction’ within the meaning of s 19 of the FW Act. This means thatthe proscription would extend both to action that was capable of beingprotected, but that was not in fact protected(for example, because, as inEsso v AWU, a bargaining representative notified a form of industrialaction that did not fall within the scope of the action approved by ballot),andto any other form of coercive behaviour — such as picketing — thatdid not constitute ‘industrial action’in terms of s19.^[10]

•Second, for liability to arise under s 343(1), it must be shown thatthe action was intended to coerce the party against whomit was directed in thesense of ‘negating their choice’ or ‘overriding theirwill’.^[11] To satisfy thisrequirement, the conduct must be ‘unlawful, illegitimate orunconscionable’.^[12]

In NTEU vCommonwealth,^[13] Weinberg J,having reviewed a number

of decisions under s 170NC of the Workplace Relations Act 1996

(‘WRAct’),^[14] concludedthat:

The approach to the expression ‘intent to coerce’ taken in eachof the authorities ... makes it clear that what is requiredis an intent tonegate choice, and not merely an intent to influence or to persuade orinduce. Coercion implies a high degree of compulsion, at least ina practicalsense, and not some lesser form of pressure by which a person is left with arealistic choice as to whether or not tocomply.^[15]

•Third, it is not necessary that the will of the target party actuallybe ‘negated’, it is sufficient that theparty taking or threateningto take the ‘action’ intended to negate the will of thetarget.

As discussed below, it is arguable that there ought to be a fourthrequirement: that the ‘action’ be ‘reasonablycapable’of negating the will of a target that displays a reasonable level of industrialfortitude, even when faced with unprotectedindustrial action or action thatdoes not constitute ‘industrial action’ for purposes of s 19 of theFW Act.

In determining whether there was an intention to coerce for purposes of s343, s 360 provides that a person will take action for aparticular reason‘if the reasons for the action include that reason’, while s 361imposes a reverse onus of proof wherebyaction will be presumed to have beentaken with the necessary intent unless the perpetrator proves otherwise. Thismeans, for example,that in Esso v AWU it was for the AustralianWorkers’ Union (‘AWU’) to prove that it did not intend tocoerce Esso for purposes ofs 343. That, in the opinion of both Jessup J atfirst instance and Buchanan and Siopis JJ on appeal, it failed to do.

As noted above, Esso obtained a s 418 order from the Fair Work Commissiondirecting that the alleged ‘unprotected’ industrialaction cease. Inthe Federal Court of Australia, the AWU sought to have the order set aside onthe basis that it was beyond the powerof the Fair Work Commission. As alsoindicated, Esso sought a declaration in relation to an alleged breach of s 343of the FW Act.

At first instance, Jessup J found that parts of the order were beyond power,but key aspects of the order wereupheld.^[16] The legitimate scope ofthe order was further narrowed on appeal by the majority of the Full FederalCourt, but the validity of theorder wasmaintained.^[17] The AWU was found tohave taken unprotected industrial action contrary to the valid s 418order.^[18]

In addition to orders under s 418, Esso sought declarations that the AWU andits members had engaged in coercion within the meaningof s 343 of the FWAct.

At first instance, Jessup J granted thisapplication,^[19] and in due coursethis finding was upheld by the majority of the Full FederalCourt.^[20]

ABreaches of Orders

The first issue on appeal was whether the AWU had contravened orders of theFair Work Commission for purposes of s 413(5).

In support of its application, Esso argued that the breach of the s 418 orderby the AWU and its members meant that they were preventedfrom taking anyfurther protected industrial action during the life of the negotiations for theproposed agreement because they couldno longer satisfy the requirements of s413(5).

At first instance, Jessup J clearly favoured the restrictive interpretationof the section urged by Esso, but decided that, for reasonsof comity, he wasbound by the decision of Barker J in Australian Mines and Metals AssociationInc v Maritime Union ofAustralia.^[21] Accordingly, withevident reluctance, His Honour found that s 413(5) did not removeprotection from industrial action where the breachof order in question was notcurrent.^[22]

The first instance decisions of Barker J and Jessup J were appealed to theFull Federal Court. Each appeal was heard by the same Bench,and the decisionsin both matters were handed down at the sametime.^[23]

The breach of orders under consideration in AMMA v MUA involved afailure by the Maritime Union of Australia (‘MUA’) to provideundertakings required by bargaining orders ofthe Fair Work Commission within aspecified timeframe.

By the time of the first instance hearing, the breach had been rectified, butAMMA argued that the MUA’s failure to comply withthe orders in a timelymanner meant that it could not satisfy the requirements of s 413(5) for theremainder of the negotiations.

The majority in Esso v AWU adopted the reasoning and findings ofBuchanan J in AMMA v MUA in relation to the interpretation of s413(5).^[24] It will be recalled thats 413(5) stipulates that the relevant persons ‘must not have contravenedany orders that apply tothem’ in the context of negotiations for anenterprise agreement. The shift of tense is potentially significant in that itleaves open at least two possible readings of s 413(5).

Justice Jessup’s preferred reading was that s 413(5) would apply wherethere had been a contravention of an order ‘whichapplied to the person atthe time when the contraventionoccurred’.^[25] Therefore, ifan order applied to a person, and they contravened it while it applied, thenthat would be a contravention for purposesof s 413(5), and the personwould be unable to satisfy the requirements of that subsection for the remainderof the negotiations.

In support of this approach, His Honour referred to the legislative historyof the provision and, in particular, to s 443(1) of theWR Act, whichprovided that industrial action by an employee organisation or an employee wouldnot be protected industrial action unless‘before the person begins toengage in the industrial action, [the person] has complied with the order ordirection’.Justice Jessup noted that the difference between the wordingin the WR Act and the FW Act was ‘of substance’; thatit evidenced a conscious resolve of the drafter to express the term differently;and that therewas ‘every reason to suppose that this was a change insubstance that reflected the intention of thelegislature’.^[26]

The alternative interpretation relies on the use of the present tense in s413(5) to refer to orders that apply to the persons organisingor engaging inthe ‘action’. This suggests that if the order does not currently‘apply’, then any past contraventionof orders is irrelevant forpurposes of the exclusion. Justice Buchanan took the view in AMMA v MUAthat ‘the identified persons must not have contravened any such orderswhen organising or engaging in the particular industrialaction’^[27] and, as such,‘only such orders as are relevantly prohibitory and operative at the timeof organising and engaging in the particularindustrial action will requireconsideration unders 413(5)’.^[28]

His Honour supported this interpretation by reference to the statutorycontext, starting from the premise that the meaning of thesection is to bediscerned, as far as possible, ‘as a natural consequence of the statutorytext, having regard to its placeand evident purpose in thelegislation’.^[29] His Honouralso derived support for his position from the fact that the provision for‘serious breach declarations’ unders 235(1) operates on pastconduct and that the prerequisites for such an order are extremely stringent.His Honour also pointed outthat the interpretation of s 413(5) advanced byAMMA (and Esso) ‘would operate more drastically and more extensively thans235’ in the event of breach of a bargaining order by a party tonegotiations.^[30] It would alsoremove access to protected industrial action without the compensating benefit ofaccess to arbitration of the underlyingdispute provided by ss 235 and269.

The approaches adopted by both Jessup J and Buchanan J are open on theliteral text of the section, and both Justices referred tothe scheme of theFW Act and the surrounding sections to support their preferredinterpretation.

With respect, the approach taken by Buchanan J appears to be more in keepingwith the scheme of the FW Act than that adopted by Jessup J. That schemerequires that when industrial actors wish to take protected industrial action,they mustcomply with the statutory prerequisites at the point at which theyseek to take the action. Justice Buchanan’s approach isalso consistentwith a literal reading of the section, and helps preserve the integrity of theprovisions for the enforcement ofbargaining orders. If it was intended thatbreach of such orders was to remove the capacity to take protected industrialaction forthe entire duration of the negotiation, surely this would have beenspelled out in the relevant statutory provisions? It should alsobe noted thatthe approach advocated by Buchanan J is consistent with the internationalobligations arm of the objects section —recognising, as it does, thataccess to protected industrial action is a worker right that should not beunreasonably or unnecessarilycurtailed.

In contrast, Jessup J’s preferred interpretation would change thenature of s 413(5) from the status of a ‘prerequisite’totaking protected industrial action, to that of a punitive provision that has theeffect of punishing wrongdoers for past transgressions.There is no warrant forreading this part of the Act in this manner. Remedies for breaches of bargainingor other orders are providedthrough the penalty provisions of theFW Act, and the possible making of serious breach declarations and(theoretically, at least) the imposition of arbitrated outcomes.

Justice Jessup’s analysis relies on a reading of the change of wordingfrom the WR Act to the FW Act as indicative of a resolve on thepart of the drafter to make a substantive change to the operation of thesection. With respect,this argument is not impelled by the wording of thestatute, and it is significant that His Honour did not refer to any extrinsicorother materials to support his reading of the section.

BUnprotected Action as‘Coercion’

In light of the fact that the AWU had complied with all of the formalitiesfor taking protected industrial action, and had issuednotices to Esso of itsintention to undertake such action, the question of whether it had any exposureunder s 343 turned upon whetherthe reference to ‘de-isolation’ inthe notice of industrial action extended to the proposed actions of theemployeesconcerned. Much of the discussion both at first instance and on appealwas devoted to consideration of this issue, and in the endit was determined byboth Jessup J and Siopis and Buchanan JJ that ‘deisolation’ waslimited to the narrower range ofactions submitted byEsso.^[31] Justice Bromberg, on theother hand, considered that deisolation extended to the full range of matters ascontended by the AWU.^[32]

On appeal, it seems to have been assumed by the majority that the principalissue to be determined was whether the AWU had intendedto use unlawful,illegitimate or unconscionable means in order to exert industrial pressure onEsso, and that if the Union had used,or intended to use, such means then therequirement that there be a negation of will was ipso facto satisfied. SinceBromberg J consideredthat the action was protected, His Honour did not need to,and did not, express any view on this issue.

The AWU, referencing the judgment of Merkel J in Seven Network vCEPU,^[33] argued that because ithad, at all times, intended to take protected industrial action, and believedthat the action was in factprotected, it lacked actual knowledge of thecircumstances (namely, the fact that ‘de-isolation’ did not extendto therange of conduct contemplated by the Union) that would render its conductunlawful.

In Esso v AWU, this argument was rejected both at first instance andon appeal, as was the reasoning of Merkel J upon which it was based. Instead,both Jessup J and Siopis and Buchanan JJ proceeded on the premise that therelevant intent to coerce refers only to the first element— the intent tonegate will — and that it did not refer to the second element — thecircumstances by which theintent to negate will is actioned (that is, utilisingunlawful, illegitimate or unconscionable action). Justice Buchanan observedthatthis approach is ‘consistent with the common law origins of the notion ofcoercion’ in which ‘the notion ofpurpose, or intent, applies to thefirst element but not thesecond’.^[34] Justice Buchananalso noted with approval Jessup J’s observation that s 343(2)provided a complete defence for protected industrialaction, but that anerroneous belief that action was protected ‘would afford nodefence’.^[35]

The concept of ‘intent to coerce’ for purposes of s 343(1) isclearly open to interpretation. The ‘intent’element could beapplied only to the negation of will as determined by Jessup J and by Buchananand Siopis JJ. Alternatively, assubmitted by the AWU, it could also be appliedto the means by which the will of the target is to be negated. Of the twooptions,the second appears to be the more consistent with the scheme andpurposes of the FW Act. That measure is based on the premise thatindustrial actors are permitted to take protected industrial action duringnegotiationsfor an enterprise agreement for purposes of coercing other partiesto submit to their preferred position. The protected industrialactionprovisions are complex, both in form and in substance. As the facts andlitigation history of Esso v AWU itself demonstrate, the outcome in suchcases may come down to fine factual distinctions over which reasonable minds maydiffer.

The effect of the majority position in Esso v AWU is that virtuallyall instances of unprotected industrial action taken in the context ofcollective bargaining negotiations willbreach s 343, irrespective of themotivations of the industrial actor, or their genuine efforts to comply with acomplex statutoryregime.

It can readily be conceded that ‘action’ that is‘unprotected’ within the meaning of the FW Act will be‘unlawful’, and parties adversely affected by it retain theircapacity to obtain relief in respect of it. Mostobviously this could be donethrough proceedings in contract or in tort and, in the case of unprotectedaction that falls withinthe definition of ‘industrial action’ in s19 of the FW Act, by means of applications under ss 417 or 418 ofthe FW Act. It does not, however, follow that all unprotected industrialaction, or action that falls outside the scope of the statutory definitionofindustrial action, should necessarily be regarded as coercive in character forpurposes of s 343(1).

Take, for example, action by employees that involves typing all internalemail correspondence with the ‘Caps Lock’ keyengaged, or a refusalby firefighters to refuse to salute superiorofficers.^[36] Such action may or maynot be ‘unlawful’ as a breach of contract (or in tort). If it wasnot unlawful, it would not requireprotection, and could not satisfy the‘unlawfulness’ criterion for purposes of potential liability forcoercion. It wouldthen be a question of fact whether the conduct couldnevertheless be found to be ‘illegitimate’ and/or‘unconscionable’.If the proposed conduct was unlawful, it wouldneed to be ‘protected’ in accordance with pt 3-3.

If it was not so protected, then the employees concerned would be exposed toproceedings in contract and/or tort. The conduct wouldalso, in principle,satisfy the ‘unlawfulness’ criterion for purposes of s 343(1).Whether it would be ‘illegitimate’and/or‘unconscionable’ may well be in the eye of the beholder.

Whether unlawful or not, the conduct would clearly be intended to exert somelevel of industrial pressure on the employer, if onlyby irritating members ofmanagement. It does, however, seem to be far-fetched to suggest that such actionis ‘intended’to negate the will of the employer in any meaningfulsense — as becomes particularly clear if it is assumed that the employerconcerned is a major multinational enterprise or a well-resourced governmentdepartment or public authority. Of course, it couldbe said that there was an‘intent’ in the sense that the action was deliberate, but as notedearlier, common sense suggeststhat for ‘action’ to have therequisite ‘intent’ to negate the will of the employer, it mustactually havethe capacity to do so. Furthermore, it seems reasonable to supposethat employers — especially where they are large corporationsor publicauthorities — could be expected to demonstrate some level of fortitude inthe face of unprotected industrial action,especially if the action concernedhad little or no capacity to interfere with the employer’s conduct of itsbusiness.

At first instance in Esso v AWU, Jessup J determined that the intentof the AWU in organising the impugned action ‘was to apply sufficientdirect pressureon Esso to cause it to act otherwise in the exercise of its ownfree choice’ by causing it ‘to agree to terms in a prospectiveenterprise agreement to which it would not, as a matter of choice, have agreedin the absence of thatpressure’.^[37] This, in theopinion of Jessup J, was‘illegitimate’.^[38] Itwas also unlawful:

The obligation to serve lies at the heart of any employment relationship. Theconclusion that it is illegitimate for an employee torefuse to serve as a meansof extracting beneficial terms from his or her employer is one that will rarelybe difficult to draw.^[39]

On this reading, if the action was unprotected, it was necessarily coercive.Justice Jessup does leave open the possibility that therecould becircumstances where it would not be possible to draw the inference that it wasillegitimate for an employee to refuse to serve.However, in his Honour’sown terms, such instances would berare.^[40]

The approach adopted by Jessup J at first instance was endorsed by Siopis andBuchanan JJ on appeal.^[41] JusticeBuchanan did acknowledge that ‘industrial action is not rendered unlawful,illegitimate or unconscionable only becauseit is not protected industrialaction’.^[42] This seems tosuggest that there could be situations where ‘action’ would not be‘unlawful, illegitimate or unconscionable’even though it was notprotected. As a matter of logic, if the action required protection in the firstplace, it is hard to see howit could be said not to be ‘unlawful’,although in principle it could certainly be said not to be‘illegitimate’or ‘unconscionable’. His Honour did notprovide any examples of situations where this would arise and, in light of hisendorsement of the approach of Jessup J, they are likely to be few and farbetween in practice.

The unsatisfactory character of the approaches adopted at first instance andby the majority of the Full Court in relation to thecoercion issue isindicative of a failure to take adequate account of the underlying rationale forthe protected industrial actionprovisions of the FW Act, or for s 343.In terms of the dichotomy noted at the start of this column, Jessup J, andSiopis and Buchanan JJ, appear to haveproceeded from the assumption that thecapacity to take protected industrial action is a privilege, and that therelevant statutoryprovisions ought to be accorded a restricted interpretationin light of the fact that they constitute a limitation upon the employer’scommon law and (to a lesser extent) statutory rights. Their Honours do notappear adequately to have recognised that the capacityto take industrial actionis a necessary incident of a system based on direct negotiation betweenemployees and their representativeson one hand and employers and theirrepresentatives on the other. They also appear to accord insufficient weight tothe fact thatthe right of employees to take industrial action to protect and topromote their legitimate social and economic interests is recognisedininternational law as a fundamental human right, and that, as such, the lawshould be interpreted and applied in a manner thataccords proper recognition tothat principle.

In summary, therefore, it is suggested that it would be appropriate for theHigh Court to uphold the interpretation accorded to s413(5) by the majority inEsso v AWU. This appears to be consistent with both the letter and thespirit of the legislation, and sits comfortably with Australia’sinternational obligations.

That is not the case in relation to the s 343 issue. The fact that engagingin unprotected industrial action may expose employeesand their representativesto proceedings in contract, tort or under statute does not mean that those whoorganise or participatein such action should necessarily be regarded as havingan intention to negate the will of the party to whom the action is directedforpurposes of a statutory proscription of coercion. This is especially the case insituations where the conduct is not, in fact,unlawful, or, where it is unlawfulbut, has little or no capacity to exert significant pressure on the target ofthe action. Thereis much to be said for the AWU’s contention that theintention to coerce requirement applies both to the negation of choiceand tothe means to achieve that end. Logically, to be coercive in the relevant sense,‘action’ must also have a realcapacity actually to negate choice inthe requisite sense.

^[∗]Honorary Professor,Graduate School of Business and Law, RMIT University, Melbourne, Victoria,Australia.

[†]Associate Professor, The Universityof Sydney School of Law, New South Wales, Australia. The authors would like tothank the anonymousreferee for their helpful comments on an earlier draft.

^[1]High Court of Australia, CaseNos M185/2016 and M187/2016 (on appeal from [2016] FCAFC 72; (2016) 258 IR 396) (‘Esso vAWU’).

^[2]See Breen Creighton,‘Enforcement in the Federal Industrial Relations System: An AustralianParadox’ (1991) 4(3) Australian Journal of Labour Law 197; ShaeMcCrystal, The Right to Strike in Australia (Federation Press, 2010) ch4.

^[3]Opened for signature 16December 1966, 993 UNTS 3 (entered into force 3 January 1976).

^[4]Opened for signature 9 July1948, CO 87 (entered into force 4 July 1950). This Convention was ratified byAustralia on 28 February1973. For discussion on its implications for Australianlaw, see McCrystal, above n 2, chs 2, 10.

^[5]FW Act s 415.

^[6]Ibid s 417.

^[7]For descriptions of theseexposures, see Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstoneand Shae McCrystal, Creighton & Stewart’s Labour Law(Federation Press, 6^th ed, 2016) chs 26–7; Carolyn Sappideen,Paul O’Grady and Joellen Riley, Macken’s Law of Employment(Thomson Reuters, 8^th ed, 2016) ch 14.

^[8]Emphasis added.

^[9]‘Workplace right’for this purpose would include (s 341) participation in the making, varying orterminating of an enterpriseagreement: FW Act ss 341(1)(b), (2)(e).

^[10]Davids Distribution PtyLtd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463.

^[11]See, eg, Seven Network(Operations) Ltd v Communications, Electrical, Energy, Information, Postal,Plumbing and Allied Services Union of Australia [2001] FCA 456; (2001) 109 FCR 378, 388 [41](‘Seven Network v CEPU’); National Tertiary EducationIndustrial Union v Commonwealth [2002] FCA 441; (2002) 117 FCR 114, 143 [103], 144[112] (‘NTEU v Commonwealth’); Victoria v Construction,Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172, 187[70]–[72].

^[12]Seven Network v CEPU[2001] FCA 456; (2001) 109 FCR 378, 388 [41].

^[13][2002] FCA 441; (2002) 117 FCR 114.

^[14]Section 343(1) is the linealdescendent of s 170NC. That provision was originally inserted in theWR Act in 1996, and was given extended effect by the WorkplaceRelations Amendment (Work Choices) Act 2005 (Cth), becoming s 400 of theamended WR Act.

^[15]NTEU v Commonwealth[2002] FCA 441; (2002) 117 FCR 114, 143 [103] (emphasis in original).

^[16]Esso v AWU [2015] FCA 758; (2015) 253IR 304, 345 [116].

^[17]Esso v AWU [2016] FCAFC 72; (2016) 258IR 396, 435–8 [130]–[145].

^[18]Note that Bromberg Jobserved that as his factual finding was that the AWU had not engaged inunprotected industrial action, there were no relevantcontraventions of s 418orders: ibid 485 [369].

^[19]Esso v AWU [2015] FCA 758; (2015) 253IR 304, 355–63 [154]–[188].

^[20]Esso v AWU [2016] FCAFC 72; (2016) 258IR 396. The principal judgment was delivered by Buchanan J, with Siopis Jconcurring. Justice Bromberg dissented on the ground that becausethe industrialaction was protected, there was no exposure under s 343.

^[21][2015] FCA 677; (2015) 251 IR 75(‘AMMA v MUA’).

^[22]Esso v AWU [2015] FCA 758; (2015) 253IR 304, 354–5 [144]–[152].

^[23]AMMA v MUA [2016] FCAFC 71; (2016) 258IR 374; Esso v AWU [2016] FCAFC 72; (2016) 258 IR 396.

^[24]Esso v AWU [2016] FCAFC 72; (2016) 258IR 396, 400 [1], 440 [161]–[163]. Given the position His Honour adopted inrelation to the meaning of ‘de-isolation’,Bromberg J did not needto decide the s 413(5) point,

but he indicated (at 485 [370]) that had it been necessary to do so, he toowould have adopted the position taken by Buchanan J inAMMA v MUA.

^[25][2015] FCA 758; (2015) 253 IR 304,354 [144].

^[26]Ibid 351 [136].

^[27][2016] FCAFC 71; (2016) 258 IR 374, 392 [94](emphasis in original).

^[28]Ibid 393 [97].

^[29]Ibid 385 [54].

^[30]Ibid 391 [88].

^[31]See, respectively, Esso vAWU [2015] FCA 758; (2015) 253 IR 304, 309–16 [8]–[28], 331–8[66]–[90]; Esso v AWU [2016] FCAFC 72; (2016) 258 IR 396, 414–34[58]–[125].

^[32][2016] FCAFC 72; (2016) 258 IR 396,466–80 [287]–[347].

^[33][2001] FCA 456; (2001) 109 FCR 378.

^[34][2016] FCAFC 72; (2016) 258 IR 396, 446[194].

^[35]Ibid 443 [179].

^[36]Both of these forms ofaction were identified in a protected action ballot application in UnitedFirefighters’ Union Australia v Country Fire Authority (PR569907, 29July 2015).

^[37][2015] FCA 758; (2015) 253 IR 304, 361[174].

^[38]Ibid 361 [175].

^[39]Ibid.

^[40]Ibid.

^[41][2016] FCAFC 72; (2016) 258 IR 396, 448[201].

^[42]Ibid 443 [181].