Consider given some statutory protection from common law
Consider whether the current law in Australia in relation to pickets is too harsh. Introduction The power dynamic within employment relationships has a direct bearing, and often can be decisive in the outcomes of industrial disputes. Indeed, the ability of employees to effectively negotiate agreeable working conditions is dependent upon their actual or perceived ability to withdraw their labour.
A powerful form of industrial protest available to employees and trade unions is the picket line.This essay aims to discuss the legal treatment of picketing under the current law in Australia and the range of relief options available for employers. Further, it will examine the whether the law should move beyond a merely formal recognition of workers’ interests to a substantive consideration of the objectives of pickets during industrial action. The legal position of picketing Under the Fair Work Act and its predecessors, industrial action undertaken as a part of the process of collective bargaining and negotiation is given some statutory protection from common law and other legal liability.Industrial action as defined in s19(1) largely mirrors its counterpart previously contained in the WR Act and covers a range of possible industrial activities available to employees and union representatives.
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Although picketing by its very nature, is a form of industrial action insofar as it is a means by which employees can apply strategic pressure, the courts and the Australian Industrial Relations Commission (‘AIRC’) have preferred a more technical approach to its categorisation.Given that s418-420 orders can only apply to industrial action as defined under s19(1), the nature of picketing and whether it constitutes industrial action has long been a contentious issue. In Davids Distribution v National Union of Workers, (‘Davids’), the Full Federal Court noted the two extremes of picketing. Peaceful picketing with a collection of people outside an establishment making protests, and dissuading employees, suppliers, clients or customers of the employer from entering the site is, and has never been unlawful.However, as its name suggests, it would not fall under the technical definition of ‘industrial action’ as there is no need for the protected action provisions.
On the other hand, the contentious form of picketing is that which is coercive and takes the form of preventing or hindering people from performing, accepting or offering for work. In the Davids decision, the court held that picketing was excluded from the scope of the immunity granted under the Act and by the same token, would not be subject to FW Act sanctions against unprotected industrial action.Available Relief Where picketing ceases to be peaceful, there are a number of sanctions available for employers at common law.
That is, once the picketing moves beyond a form of ‘mild persuasion’, there is potentially a wide range of sanctions both at common law and under statute including termination of employment, liability under Trade Practices Act while industrial and economic torts such as nuisance, interference with trade, trespass, conspiracy and intimidation could also be committed.Further, where unprotected action is “designed to coerce bargaining representatives to enter into an enterprise agreement or adverse action against an employer”, liability for a civil penalty for breach of the FW Act may also be imposed. For Nyland and Svensen and this author agrees, the difficulty of “stating succinctly what the law is on picketing” and the “bewildering range” of potential liabilities following a picket line is a concerning issue insofar as it changes the right of any individual or group to picket peacefully.
Is this area of law settled? For Willis however, it is difficult to be critical of the decision in Davids. She argues that with other forms of industrial action, the employer is technically able protect itself by employing other resources. Further, she contends that if tortuous picketing received protected status, it would be possible for a union to organise a total blockade of premises preventing the employer from any trade at all.
While it is foreseeable that protection for such action would exceed the level of persuasive pressure anticipated by Parliament, it is this author’s opinion that Willis’ assertion fails to take into account the varying intensities and categories of picketing. Indeed, while Davids is the leading case in this area, it appears that it has not been strictly applied in the subsequent case Transfield Construction v AMWU (‘Transfield’). In Transfield, Merkel J held that where the picket line has been established for the purpose of preventing and deterring employees from carrying out the work, it would fall under the ambit of ‘industrial action’, nd thus subject to court orders. This decision suggests that contrary to Willis’ argument, there is no need to grant tortious picketing protected status as there exists, categories of behaviour that sit between the two extremes identified by Davids ; categories which can, in turn, be identified as ‘industrial action’. A purposive approach? For Bercusson however, the focus of the courts should not be on the formality of the legislation. Rather, he argues that legal position on picketing should be based on the recognising the purposes for which employees picket.
In many instances, picketing is a form of strategic pressure employees can utilise to promote and further their economic interests when they are engaged in collective bargaining. When this ‘bargaining chip’ available to the employees and trade unions is restricted by its own uncertainty as to its categorisation at law, it appears that the extent to which trade unions can win better terms and conditions will also be stunted. Nonetheless, it may be dangerous to alter the legal position on picketing to examine the purposes for which it was engaged in.That is, if this position is altered and picketing is accepted as industrial action in the normal sense of the term, Willis’ argument as to the status of tortious picketing would hold. As mentioned previously, the upper hand held by respective parties can often be decisive in the outcome of an industrial dispute and such a liberal approach to the protection and empowerment of workers tilt the alleged power imbalance and leave the employers at the mercy of their workers. Is the position in Australia consistent with the principles established by the ILO?In some instances, picketing can be peaceful and constructive as a means of not only placing economic pressure on an employer, but also as a way of raising public awareness of the issues in dispute.
The right to strike is a clear obligation in international law and found in Art 8(1)(d). According to the Committee of Experts, this right is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests.For McCrystal, picketing is one of a wide range of industrial action which although considered to constitute a legitimate exercise of the right to strike under ILO standards, is excluded from the protected action regime under the FWA.
She argues that the position espoused by the Full Court in Davids suggests that Australian workers do not have an independent and entrenched right to take action and is ultimately, indicative of Australia’s lack of observance of its international obligations.One of the foundations of ILO jurisprudence is the fact that access to the right to strike should not be restricted to the pursuit of voluntary collective bargaining because the right to strike may be exercised to further and protect the interests of workers in the broadest sense. Employing this classification, it would appear that picketing would fall under this right. In the Northern Territory, Western Australia and New South Wales however, even a peaceful picket line could potentially constitute the criminal offence of ‘unlawful assembly’.This is clearly at odds with the ILO standards, particularly where peaceful picketing is undertaken by workers to protect their social or economic interests. Nonetheless, insofar as international treaties are not ratified and by extension, extended to domestic legislation, Australian workers will have to rely on the parameters of the FW Act and limit industrial action to a last resort.
Conclusion ——————————————– 1 .Felice, V, ‘Stopping or Preventing Industrial Action in Australia’, (2000) MULR 12 at pg 1. 2 .
The Full Bench in Coal and Allied Operations Pty Ltd v CFMEU(1998) 80 IR 14 were undecided about the issue. 3 . (1999) 165 ALR 550. 4 .
Ibid at 486. 5 . Shae McCrystal, ‘The Right to Strike in Australia’, The Federation Press, 2010 at pg116. 6 .
Willis, J, ‘Is this the end of the line? A review of picketing in the new millennium’, (2000) 19 AMPLJ at pg 129. 7 .Patrick Stevedores Operations Pty Ltd v MUA (1998) 82 IR 87. 8 . McCrystal, S, ‘The Fair Work Act 2009 (Cth) and the Right to Strike’ (2010) 23 AJLL 3 at pg 14. 9 .
Nyland,C and Svensen, S, ‘The Battle of Bombo- Besetting Laws and the Right to Picket in New South Wales’ (1995) 8 Australian Journal of Labour Law 177 at pg 8. 10 . Willis, J, ‘Is this the end of the line? A review of picketing in the new millennium’, (2000) 19 AMPLJ at pg 129. 11 . 2002 FCA 1413.
12 . Bercusson, B, ‘One hundred years of conspiracy and protection of property: time for a change’, (1977) 40 Modern Law Review 268 at pg270. 13 . Felice, V, ‘Stopping or Preventing Industrial Action in Australia’, (2000) MULR 12 at pg 1. 14 .
Howe, J, ‘ Picketing and the Statutory Definition of ‘Industrial Action’, (2000) 13 Australian Journal of Labour Law at pg8. 15 . International Covenant on Economic Social and Cultural Rights (ratified by Australia). 16 .
International Labour Office, Freedom of Association and Collective Bargaining, General Survey by the Committee of Experts on the Application of the Conventions on Freedom of Association, the Right to Organise and Collective Bargaining, Report III (Part 4B), International Labour Conference, 1983, 69th Session at 200. 17 . McCrystal, S, ‘The Fair Work Act 2009 (Cth) and the Right to Strike’ (2010) 23 AJLL 3. 18 .
Shae McCrystal, ‘The Right to Strike in Australia’, The Federation Press, 2010 at pg 6. 19 . ILO 2006a at 531. 20 . Shae McCrystal, ‘The Right to Strike in Australia’, The Federation Press, 2010 at pg 243. 21 . Ibid.