Australia: Dealing with picketing: the changing landscape

In brief

• Pickets can have swift and harmful ramifications for the target business. Because of this, they are likely to remain an industrial tactic, despite changes in the law which may assist employers in responding to them.
• Accordingly, it remains important for employers to be aware of legal developments relating to pickets to ensure they are best placed to identify the ‘right’ option in response to protect their business. The cost of unpreparedness in this space is significant.

A reflection on picketing

Next week, the Victorian Court of Appeal will hear the CFMEU’s appeal of contempt findings made following the Myer Emporium site blockade. The blockade took place outside the Myer Emporium site in Melbourne’s CBD in August and September of 2012 and was one of the largest and most disruptive pickets in Victoria’s history.¹ A detailed analysis of the legal issues surrounding this particular blockade can be found here.

The impending appeal provides an appropriate juncture to reflect on significant developments in ‘picketing law’ which have gathered momentum since August 2012. These include:

• legislative reforms, which provide enhanced powers for police to direct picketers to ‘move on’, as well as additional protection relating to picketing in the construction industry,
• a (seemingly) greater preparedness of the Courts to issue 'representative orders', which can assist with difficulties that arise from community pickets, and
• various decisions of the Federal Court and the Fair Work Commission which reinforce an employer’s right to take a robust approach in managing unacceptable employee behaviour on picket lines.

Legislative reforms

Both the Victorian State Government and the Federal Government are progressing legislative agendas which will provide some relief to employers faced with a picket.²

At the State level, the Summary Offences and Sentencing Amendment Act 2014 is scheduled to commence on 1 September 2014 (unless an earlier date is proclaimed). We have previously published an update containing a detailed analysis of these laws, which can be accessed here.

The Federal Government’s Building and Construction Industry (Improving Productivity) Bill 2013 (BCII Bill)has a somewhat more uncertain future. Whilst the BCII Bill has been read for a second time in the Senate, it is likely to face further hurdles in the newly composed Senate.

If enacted, the BCII Bill will (in addition to various other changes such as re-establishing the office of the Australian Building and Construction Commissioner) introduce prohibitions on organising or engaging in unlawful pickets (being those which are industrially motivated or otherwise unlawful). Civil penalties of up to $170,000 apply to bodies corporate who are found to have contravened these prohibitions. Importantly, the reverse onus approach adopted in the General Protections provisions of the Fair Work Act is also present in the BCII Bill, as pickets will be assumed to be industrially motivated unless proven to the contrary.

Representative orders

The principle that an order cannot be directed to the world at large,³ creates obvious problems for businesses confronted with picketing activity. Often, a picket is formed by a continuously changing group of people, and ascertaining their identities can be difficult. Where orders are made against identified persons, it is not uncommon for those persons to be simply ‘replaced’ on the picket line by other persons. The cost and time of returning to the Court (sometimes by way of separate proceedings) to obtain increasingly broader orders to deal with this conduct is obviously undesirable.

These difficulties are ameliorated to some extent by obtaining representative orders which bind an identified individual who then is taken to represent a class of others in the proceeding. A representative order may be drafted in terms such that all individuals who were involved in the picket during a period of time (for example from the start of the picketing until the date of the hearing) are restrained from being involved in further picketing. This class can then, on application, be extended during the course of the proceeding. Historically, such orders have been seldom granted, however the Supreme Court of Victoria has recently shown a greater propensity to award representative orders, having done so in respect of:

• the picketing at the site of a new McDonalds restaurant in Melbourne’s outer-east' ⁴
• the Station Pier blockade in relation to the Spirit of Tasmania dock workers,⁵ and
• individuals who had been engaging in picketing activity at a Super-A-Mart.⁶

Robust management of employee picketing behaviour

The Courts and the Fair Work Commission have also refused to intervene where employers have disciplined employees following unacceptable conduct during a picket.

In Mackie v BHP Coal Pty Limited,⁷ the Fair Work Commission upheld the dismissal of a picketing employee who threw an object at a moving car occupied by non-union employees. Further, an employer did not breach the General Protections provisions of the Fair Work Act when it dismissed employees who had abused fellow workers crossing a picket line.⁸

While it is important to ensure that employees’ union membership or other protected attributes are not taken into account when taking disciplinary action, these decisions of the Court and the Fair Work Commission should give employers comfort that participation in an industrially motivated picket does not afford employees a 'magic cloak' – they can (and should) be held to account for intimidating or threatening behaviour.

Where to from here?

As a general rule, in dealing with pickets outside of bargaining, an employer’s first port of call has been to commence industrial tort proceedings in a State Supreme Court against the union alleged to be organising the picket. This strategy was often preferred due to the absence of more ‘convenient’ statutory remedies, and because it was more time and cost effective to obtain orders against the single entity said to be running the picket rather than chasing orders against the various individuals standing on the picket line. This approach had (and has) its difficulties.

First, it is often difficult to obtain orders against the union alleged to be orchestrating the picket. The fact that the individuals participating in the picket are wearing union branded clothing or using union branded equipment (such as barbeques or flags) may not be enough to persuade the court that the union is in fact organising the picket.⁹

Second, time is of the essence, and problems can arise when seeking orders prohibiting a picket where it has ceased by the time the matter is heard by a court. In the highly publicised 2012 dispute between Toll Transport and the National Union of Workers for example, the Court refused to grant an injunction despite finding that “[a]t the date of the hearing, the balance of convenience strongly weighed in favour of the grant of an interlocutory injunction”.¹⁰ The Court was informed on the evening prior to judgment being delivered that the picket was no longer in place due to an agreement having been reached between the parties. Toll contended that the injunction was nevertheless required to prevent any further picketing in the event that the agreement was not successfully implemented, however the Court dismissed this argument noting that Toll could renew its application if necessary.¹¹

The developments canvassed above will assist employers in overcoming some of these difficulties, and provide additional options for dealing with obstructive picketing. Existing statutory remedies should also not be forgotten, particularly in circumstances where the picketing is directly related to bargaining for an enterprise agreement. For instance, obstructive picketing that takes place in order to pressure an employer to agree to union bargaining demands may be best dealt with via a coercion proceeding under the Fair Work Act.¹² Bargaining orders, and other remedies that turn on the particular claim being advanced by the union (or employees), may also be available.¹³ However, as the above analysis demonstrates, there is no one-size-fits-all approach for these matters. It is as important as ever that employers are well prepared for obstructive picketing, particularly in the lead up to enterprise bargaining campaigns, so that they are able to quickly take appropriate steps in response.

This is particularly so, given that obstructive picketing appears to remain a desirable industrial tactic for many unions given the swift and significant impact that such pickets can have on an employer’s business. The cost of unpreparedness in this space is significant.

This article was written by Rohan Doyle, Senior Associate, and Brad Popple, Solicitor, Melbourne.

Endnotes

1. See for example the comments of Cavanough J in Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134 at [142].
2. The Tasmanian Government has also passed a Bill (the Workplaces (Protection from Protesters) Bill 2014) through the lower house, which, if enacted, will criminalise protesting that obstructs business activity.
3. Maritime Union of Australia and Ors v Patrick Stevedores Operations Pty Ltd and Anor (1998) 4 VR 143 at (157) and (159).
4. McDonald's Australia Ltd v Watson [2013] VSC 502.
5. Qube Ports Pty Ltd v Maritime Union of Australia [2013] VSC 396.
6. Super A-Mart Pty Ltd v National Union of Workers & Ors [2014] VSC 130.
7. [2013] FWC 3503, upheld on appeal: [2013] FWCFB 8210.
8. See Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1201 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2013] FCAFC 132, Although note that this case is currently on appeal to the High Court - see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCATrans 105.
9. See for example Recall Information management Pty Ltd v National Union of Workers [2013] FCA 161 at [35] and [52].
10. Toll Transport Pty Ltd T/as Toll Customised Solutions v National Union of Workers & Ors [2012] VSC 316 at [30].
11. This can be contrasted with Grocon Constructors (Qld) Pty Ltd v CFMEU & Ors,[2012] FMCA 1062, where the injunction was granted despite the picket having dispersed. However, in this case there was no in-principal agreement as there was in Toll, the picketing activity had ceased simply in response to the proceedings, and the catalyst to the picketing remained.
12. See s343 of the Fair Work Act.
13. See s228 and s355 of the Fair Work Act.
14. See here for a recent example the activity which took place at Spencer Street Station on 3 July 2014.

More information

For information regarding possible implications for your business please contact Paul Burns.