On 6 December 2017 the High Court’s decision in Esso Australia Pty Ltd v Australian Workers’ Union; Australian Workers’ Union v Esso Australia Pty Ltd  HCA 54 clarifies that employees and unions cannot take or organise protected industrial action if they have failed to comply with any relevant order of the FWC at any time during the bargaining process for an enterprise agreement.
The decision could lead to more employers seeking bargaining orders or stop orders during the course of enterprise agreement negotiations. At present, bargaining orders are sought relatively infrequently and usually by unions. Bargaining orders can be applied for if one or more of the bargaining representatives have not met or are not meeting the good faith bargaining requirements. Stop orders can be applied for in respect of unprotected industrial action, e.g. if a particular type of industrial action is taken that is not authorised by the protected action ballot, or if the required notice is not given of industrial action.
In the Esso case, the AWU organised unprotected industrial action during the course of the bargaining and Esso obtained a stop order from the FWC. The stop order was subsequently breached. When further industrial action was organised, Esso argued that the action was not protected because the union and employees had not complied with the earlier stop order. Esso’s arguments were accepted by the High Court.
In response to the High Court’s decision, Ai Group made the following media comments:
“The High Court’s decision is very welcome. It will encourage unions to comply with the law.
“Industrial action can inflict substantial damage upon businesses and can be very harmful for employees. Therefore, it is reasonable that unions take care and ensure that they have complied with all the legal requirements before they organise industrial action.”
“The requirement that a union must have complied with all orders of the Commission relating to the bargaining, if the union wishes to organise industrial action, has been in federal workplace relations laws in one form or another since 1993. Therefore, the High Court’s decision is not surprising.”
If you would like more information about the union rights of entry, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.
Alternatively, if you would like assistance applying for bargaining orders or stop orders, and ensuring compliance by unions and employees, please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane or email Ai Group Workplace Lawyers at firstname.lastname@example.org.