| Abstrakt: |
The judgment of Gyles J in Finance Sector Union (Australia) v Commonwealth Bank of Australia provided what came to be described as a 'settled'construction for the expression 'intent to coerce' in ss 343 and 348 of the Fair Work Act 2009 (Cth): it was necessary that the putative contravenor apply pressure that was intended to negate choice on the part of the putative victim, and that the pressure applied involve conduct that was unlawful, illegitimate or unconscionable. These elements derived from the requirements of common law economic duress as identified by McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation. In the recent High Court judgment in Esso Australia Pty Ltd v Australian Workers' Union, the correctness of the second of these elements was questioned. In the present article, the course of the court decisions which gave rise to the 'settled' construction is examined, and it is concluded that there are grounds to doubt the correctness of that construction. [ABSTRACT FROM AUTHOR] |
