Picket line – Checklist
The law briefly
Picket lines that do not breach the peace or unlawfully interfere with citizens’ rights are a legitimate form of industrial protest. There may be other legal issues concerning the legality of the industrial action (for example, whether it is protected action under enterprise bargaining legislation), but these are not canvassed here.
It is not lawful to physically prevent entry to premises or to bar entry by threats or intimidation. Those on a picket line can seek to dissuade other people from entering, but they breach the law if they threaten, intimidate or physically block entry.
Picketing becomes illegal at common law when peaceful dissuasion gives way to obstruction and besetting, where there is possible interference with commercial contracts, and where the actions involve criminal offences such as assault and the blocking of public highways. These laws can be invoked whether or not injunctions (that is, orders to stop/cease certain actions handed down by a court) have been granted. In reality, police discretion and practical options affect what actually happens.
Federal law (s418 of the Fair Work Act) provides for orders to stop or prevent industrial action if it can be shown that it is not protected action in the course of legitimately pursuing an enterprise agreement; and Fair Work Australia thinks that it is appropriate to make such an order.
What to do
Check: to do
o The General Manager should seek out the senior union official on the picket and attempt to secure entry for those people who wish to enter the site. Such an attempt could also be made by other senior managers.
o If the initial attempts to have the picket conducted in an orderly manner are not quickly successful, the General Manager or another manager, who has been allocated the task, should contact the company’s lawyers (if the lawyers are familiar with this type of matter) or the industry body/employer/ representative body that the company refers to and seek the assistance of the appropriate industrial officer/adviser.
o If the company is not a member of such an organisation then the manager who is conducting matters on behalf of the company should make contact with a senior union official in order to have the dispute resolved as soon as possible.
o If there is no union involved, the employee who is organising the employees should be contacted and a meeting to discuss the dispute should be scheduled as a matter of urgency.
o A management committee should be set-up immediately and responsibilities allocated. This mechanism allows the process to be managed and coordinated.
o Priority number one should be to have work resume and then the details of the dispute can be worked out.
o Indicating a willingness to talk to the union and employees is a good general position to take as this may solve the problem in the immediate sense. Industrial tribunals will suggest or direct the parties into conference if the matter is not solved in many cases so the sooner negotiations start the better.
o A clear message of ‘right to access’ the site should be maintained in the course of any discussions so that the union or the employees do not receive the impression that their tactics are legally justified if this is not, in fact, the case.
o A decision should be made early as to whether the matter will be taken before an industrial tribunal. Having a clear ’game plan’ allows for a more orderly management of a difficult situation.
Be alert
o Breach of the peace is a possible consequence of a picket line and the employer should take all reasonable steps to make sure that innocent persons are not hurt.
o Industrial tribunal or court orders may well be available and, depending on the nature of the dispute, the employer may choose to access this option.
o An extended dispute can cause negative market impact for a business and this is a factor that should be thought about as well as the industrial relations issues.
Consider the options
o Negotiations with the union/employees could be commenced immediately without any attempt to disturb the picket.
o The employer may propose that the negotiations will commence immediately the picket is lifted and work resumes. Tactics in this respect should be carefully considered. The employer has to decide whether taking a hard-line - that is, no negotiations until the picket ceases - or attempting to take the heat out of the situation - is more likely to get a result.
o The dispute may be of a bitter nature and so the employer may choose to go straight to the industrial tribunal or court and seek orders to have the industrial action cease.
Follow-up
o Industrial action of this nature is a clear indication that there are some severe problems with the employee relations at the workplace - this should prompt some consideration about how to avoid a recurrence. In other words, there should be an analysis of events and some recommendations/actions plans formulated by management.
o Discussions with advisers should take place when work resumes to see if the principles guiding the business in an industrial relations sense should be re-thought. This is not necessarily the case, but the issue should be confronted.
o The possibility of a more stable and workable relationship with the union/employees should be considered from the angle of regular meetings and effective lines of communication.