- Internal Code :
- Subject Code : LAW112
- University : Charles Sturt University (CSU)
- Subject Name : Law
Introduction to the Australian Legal System
In the case of Esso Australian Pty Ltd. v Australian Workers Union (2017) 263 CLR 551, the main issue here has been in concern to the test of the determining the legal professionals whether the issues are privileged legally with an expression which may advice erroneously that such privilege is only for lawyers, also what actually it is called in the of 19951 the client has privileges legally and also applies in the relation to analyze a determine of confidentiality of communications that are written between the client and an advocate. The case also presents the ambiguity in the provisions of legislation which lead to the court from history to build decision on the meaning of a provision related to any operation2. The shades and plasticity of having nuance that occurs in the provision of legislative which require certain research and is supported by other people too34.
Esso and the AWU were changing for an agreement and bargaining enterprises for certain locations and the AWU for organizes actions for industries. Under the 5 the actions of the industry are taken during the negotiations can be preserved for industrial activity which provides immunity through civil liability. This theory has been introduced by Amendments to the Act of 19936. Anyways, the Act gives a provision that a union cannot organize any kind of protected actions against industries actually when it has been contravened orders of the commission of Fair Work. The Australian Workers Union argued on the actions which were organized and were also protected till Esso had an argumentation that the actions were never protected.
Such issues were only when an order was made by the Fair Work Commission to make certain actions preserved and protected. Section 413 and its subsection 5 specifically mentions the requirements which are common for the actions of the industry to succeed such actions as industrial and because of which subsection is being considered. It was also initiated by Esso in the Division of the Fair Work in the Federal Court for actions and seeking the declaration that the Australian Worker Union has contravened because of the order that the action was never protected and provided actual measures7. The Hon'ble court gave a decision on the side and favor of Australian Worker Union as the reason was the decision given Australian Mines and Metals Association v. Australian Maritime Union by Justice Barker that the order given had to be in current8. It was further appealed by Esso to the Full Federal Court that the decision in the Australian Workers Union was in favor therefore the order had to be current during the time of action9. The decision was handed down by the same bench in the AMMA case and on the same day10.
Furthermore, it is the only union that losses the entitlement to build and organize an action on an industrial basis while being contravened in order to remain in an operation. Therefore, whenever an order ceases to process and operate then such organized disentitlement of the industry also ceases the related actions. The Hon'ble High Court also decided in the favor of Esso by holding to the disentitlement for an organized industry to continue its actions for application to the remainder of the time of bargaining of enterprises. further, this is even difficult for the operation of an order by the commission that it has been ceased to operate and is also contravened to operate the organized industries' disentitlement actions that are continued. It has also been stated that the section 413 subsection 5 was not drafted well and was even ambiguous. The ambiguous nature of the draft could have even been avoided with some words in addition but yet that was not made in the process also it was important to glance back at history and on the historical context11.
It has also been considered that the history of legislation on the basis of context and earlier contraventions of the orders made earlier were in plurality. Justice Gageler also examined every context related to the facts and history in detail. The decision given was epitomized to the current statutory. An employer, an employee, and the Esso organization, the Australian Workers Union, appeals to the decision of the Full Federal Court in the matter of Esso Australian Pty Ltd v. Australian Workers' Union (97), for the reasons provided by CJ Kiefel, Keane, Edclman JJ, and Nettle, by saying that they may dismiss the appeal of Australian Workers Union and also shall dismiss the appeal of Esso in together. The appeal of Esso turned on selecting in between the construction alternatively and must not have been contravened under section 413 subsection 5 of the Act12. The actual selection arrives at whether the action must not have been contravened is better or pointing the events of past means did not contravene and further the Esso argues for the absence of the state on present resulting through the past events as the Australian Workers Union in object argues to the notice been granted for contention.
It was further said that neither the construction was ungrammatical, nor the construction is manifested absurd or is unjust. In the terms of grammar, the question arises that whether the action should be contravened and when expressed in the form of an experiment to the present perfect tenses, or is used to indicate to a happening even which has occurred in past, or in the form of relative manner from present perfect tenses, which is used to pint an existing production of the state by the occurred event in the past13. No grand presumption on common law is included14. The language has resorted to rights into arguments by the parties, in distraction given is at the stake and the fulfilment of the precondition of statutory in the existence of the immunity of statutory by the common law and liabilities which fall under statutory itself. The object was stated that the Fair Work Act is too nominal and general to provide the conclusion based on that construction will be better for achievement for those objects rather than other15. The external material is of no help: such explanatory memo did nothing more to the statutory text rather be a parrot to it16. The history of legislation is equivocal, they are the antecedents for section 413 subsection 517 is basically referred in relation to the absence of the contravention, therefore they were ambiguous in themselves.
In conclusion, Section 3(f) of the Act18 says that the scheme is relevant and is in the references which are stated in the objects of the Act. And its influence on the level of enterprise for collective bargaining which is under the faith of simple good obligations and rules which are clear to all is governing the actions of industry. The appeal shall be allowed at a particular cost. The decision provided by the Full Court of the Federal Court of Australia can be set aside. Instead of appeals to the court of J Foster should be permitted. All the questions raised by Foster J should be provided answers and also should be brought to an end. The questions which arose were: is the test correct and are of dominant nature, which test is common for the claim of legal privileges by professionals, and does it arise or the privilege is valid? One of the considerations was received of the pre-existing test that was not protected with the communication in written the bureaucracy and corporation sector.
The amount should be given to Esso’s proceeding cost before the hon’ble Foster J. and an appeal to the Full Court of the Federal Court.
Bibliography/References for Esso Australian Pty Ltd. v Australian Workers Union
A. Cases
Electroux Home Products Pty Ltd v. Australian workers’ Union (2004) 221 CLR 309 at 328.330 [18]-[23]
Carr v. Western Australia (2007) 232 CLR 138 at 142-143 [5]-[6]
Momcilovic v The Queen (2011) 245 CLR 1,50 (per French CJ) cited by Brysland and Rizalar n.17.
ESSO v. AMU [2016] FCAFC 72; [2016] 258 IR.
B. Legislation
The Evidence Act 1995 (Cth.)
Fair Work Act 2009
Industrial Relation Act 1988
Workplace Relation Act 1996
C. Journals Articles
Huddleston and Pullurn, The Cambridge Grammar of the English Language (2002), p 145 [5.3.3]
Australia, House of Representatives, Fair Work Bill 2008, Explanatory Memorandum, p 263 [1664]
Fiona MacDowall, Research Librarian, Melbourne Law School Academic Research Service, ‘Legislative History Research and Data Visualisation’ 2018 ALLA Conference
D. Other Sources
http://netk.net.au/Australia/Esso.asp · file:///C:/Users/Dell/Desktop/TONGUE-Sue-paper.pdf
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