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  • The High Court of Australia has recently considered key provisions of the Fair Work Act 2009 (Cth) relating to enterprise bargaining.
  • The Court’s decisions in ‘Esso’ and ‘Aldi’ have significant effects on enterprise bargaining in Australia.

On 6 December 2017, the High Court of Australia (‘HCA’) handed down two decisions that interpret the Fair Work Act 2009 (‘FW Act’), and will have consequences for the approach taken in bargaining for enterprise agreements. In each decision, the HCA closely scrutinises the language and grammar used in the
FW Act.

Esso Australian Pty Ltd v Australian Workers’ Union [2017] HCA 54 (‘Esso’)

Esso and the AWU were in a protracted bargaining at Esso’s Longford gas plant and Bass Strait platforms.

In the course of the bargaining, the AWU took industrial action which it claimed was ‘protected’. A broad ranging immunity from civil suit applies where industrial action is protected. Industrial action will, however, only be ‘protected’, and therefore subject to that statutory immunity, if it satisfies a series of common requirements set out in s 413 of the FW Act. One of them is in s 413(5) which provides that a person organising or engaging in industrial action:

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