Picketing laws may face reform but be prepared: lawyers

Date: 28.07.2014

Legal experts use Toll and Qube to highlight issues companies face due to industrial action disruption

Picketing laws may face reform but be prepared: lawyers

Pickets are effective and will continue to be used

Employers should continue to prepare thoroughly for disruptive pickets, especially as enterprise bargaining periods loom, lawyers advise.

Herbert Smith Freehills senior associate Rohan Doyle and solicitor Brad Popple note that, as an industrial tactic, pickets are effective and will continue to be used.

Legal remedies, though becoming more useful to employers, can still be unwieldy, they say.

The advice comes as legislation aimed at deflecting the worst disruption that pickets can cause is going through various parliaments.

Victorian, Tasmanian and Federal governments are pushing on with the Summary Offences and Sentencing Amendment Act 2014, the Workplaces (Protection from Protesters) Bill 2014 and Building and Construction Industry (Improving Productivity) Bill 2013 respectively. But he lawyers note the Federal Bill faces an uncertain Senate fate.

Though building industry action is the focus of some proposed legislative changes, the lawyers’ legal briefing also features transport and logistics firms Toll and Qube, in their recent dealings with the Maritime Union of Australia (MUA) and the National Union of Workers respectively.

While these changes are pending and despite courts apparently being more prepared to use ‘representative orders’, along with the Federal Court and the Fair Work Commission backing employers action against bad behaviour by picketing employees, employers still have a tough time shielding their businesses.

This is due to legal remedies being slow or difficult to obtain against unions, due to a heavy burden of proof of their involvement, as with the Qube case involving the Spirit of Tasmania, and due to courts’ unwillingness to give continuing protection, in Toll’s case.

"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," the lawyers state.

"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."

The full advisory can be found here.