Practical Applications of Industrial Action Employers Perspective

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Practical Applications of Industrial
ActionEmployers Perspective

• Bruno Di Girolami
• 27 May 2004

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Overview

• 1. What is industrial action?
• 2. How can employers respond?
• 3. Forms of industrial action
• 4. General tips

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1. What is industrial action?

• Industrial action is unlawful (WRA)
• Industrial action means
• performing work in different manner
• ban, limitation or restriction
• failure or refusal to attend for work
• It does not include
• authorised action
• reasonable safety concern

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2. How can employers respond?

• Is action protected or unprotected?
• Protected action limited right to take
  industrial action with benefit of immunity

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Employers to look out for

• When action is unprotected
• Defective bargaining period and industrial action
  notices
• Multiple purposes of industrial action
• No genuine negotiations

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Employer responses

• When action is protected
• conciliation
• terminate bargaining period
• industrial torts

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Employer responses in AIRC

• When action is unprotected
• s127 order (pros cons)
• industrial torts and s166A certificate
• dispute notifications (s99)

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Employer responses in the Federal Court

• Technical/formalities
• Profile of dispute
• Remedies bite
• Focus on purpose of industrial action
• Interim injunction (s127(7))
• s170MN and 170NC
• Secondary boycott (s45D TPA)

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Employer responses

• Action during term (s170MN)
• increasingly used on back of Emwest (eg sympathy
  strike, paid maternity leave)
• employer strategies
• more comprehensive clauses to cover field
• no extra claims
• avoid piecemeal agreements
• dominant purpose

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3. Forms of industrial action

• Picketing
• peaceful picket
• mere communication of information (not
  actionable)
• blockade
• industrial action? (actionable)

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Picketing

• Davids Distribution (Fed Ct)
• picketing is not industrial action
• no immunity, no s127 available
• cf subsequent decisions
• position unclear - depend on facts

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Picketing

• Obstruction and besetting is unlawful at common
  law (actionable tort)

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Employers should consider

• Peaceful picket - no action
• Obstruction and besetting
• s127 order?
• industrial tort (public nuisance)
• criminal law

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Other strategies to consider

• Police Act 1892 (WA)
• s54A (disorderly assembly)
• s82B (unlawfully remaining on premises)

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Secondary boycotts

• Indirect boycott
• Not directed at employer
• Directed at third person to put pressure on target

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Secondary boycotts contd

• s 45D TPA
• a person must not, in concert with a second
  person, engage in conductthat hinders or
  prevents
• (a) a third person supplying goods or services to
  a fourth person (target) or
• (b) a third person acquiring goods or services
  from a fourth person (target) and
• that is engaged for the purpose, and would have
  or be likely to have the effect, of causing
  substantial loss or damage to the business of the
  fourth person.

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How secondary boycotts work

• Elements
• 1. P1 and P2 engage in conduct in concert
• 2. Conduct of P1 and P2 hinders or prevents
  trade between P3 and target
• 3. Purpose of conduct is to cause/likely to
  cause substantial loss or damage to target or P3

P4 Multiplex (Principal Contractor)(supply)/P3
(acquire)
P2 Subcontractor
P1 Union official
P3 Boral (supply)/P4 (acquire)
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Secondary boycotts are difficult to prove

• In concert means a meeting of minds
• Substantial loss or damage
• are damages an adequate remedy (no injunction)

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Secondary boycotts

• Profile of dispute
• Interim relief
• evidence gathering is crucial

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4. General tips

• Nature
• contemporaneous records
• industrial dispute diary
• key players

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4. General tips contd

• Purpose
• dominant purpose
• union materials
• needs to support claims for new agreement
  (ulterior purpose)

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4. General tips contd

• Effect
• economic loss
• contracts (suppliers, customers)
• profitability
• goodwill/reputation

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