PICKETING is unfortunately nothing new on the Australian industrial landscape, nor on the international industrial landscape generally. Nevertheless, it has been particularly prevalent in Australia and has always been the subject of debate as to its lawfulness.
Picketing is most commonly known as a form of industrial protest outside the gates of a business’ premises in which people line up as “pickets” – that is, forming a barrier to entry or exit of the premises. Barbecues, caravans, vehicles, tents and portaloos are just a small number of items that have become additional features of modern pickets.
As far as protesting generally goes, in a free country with certain privileges in relation to freedom of speech, political expression and assembly, protesting (whether industrial or otherwise) has always been a part of the fabric of lawful democratic society, even without a bill of rights. As to the uglier side of picketing beyond mere protests, picketing has also been synonymous with actual or threatened physical confrontation, damage to property and, of course, the blockading of access to and exit from the premises that is more akin to a battlefield siege than a protest in the causing of potentially irreparable economic and social damage to a business and its people.
The legal history of picketing has therefore been very much concerned with distinguishing the unlawful elements of picketing from perfectly lawful conduct.
The landmark “Dollar Sweets” case in Victoria in 1986 was the first decision of a court to put beyond doubt that there were several unlawful elements of picketing. The case involved the establishment of a picket line outside the Dollar Sweets factory in Melbourne, by staff seeking a 36-hour week. The picket line remained for 143 days, with the company sacking workers and refusing to reinstate them.
At the time, the assembly of people off the roadway, valid parking of vehicles within designated areas and signage when not in an obstructive location were not breaches of council or Roads Department regulations. Despite the Commissioner of Police determining that a police presence was not required, Justice Murphy of the Victorian Supreme Court found that the picketers conduct went well beyond peaceful assembly. He found that conduct included besetting behaviour which he regarded as an obstruction with hostile intent so as to “cause those persons to hesitate through fear to proceed or, if they do proceed, to do so only with fear for their own safety or the safety of their property”.
The first actual statute to stop picketing in Victoria was enacted by the Napthine Coalition government in 2014. This made it an offence to engage in picketing behaviour and initially saw
the police begin to take a more active role in picketing situations. However, this legislation was repealed by the Andrews Labor government shortly after taking power.
This has left it now to the Court to continue to regulate unlawful picketing. Key cases include that picketing:
- is not a form of industrial action – so it cannot be immune from suit under the current legislative scheme for protected industrial action under the Fair Work Act; and
- despite the defences used by unions historically that they cannot be responsible for the individual actions of picketers who they do not allegedly know or have association with (i.e. it is up to each individual on a picket to be responsible for their own conduct), unions have recently been held to be “representative” defendants of a court action and therefore be so found to be responsible.
There is still a range of grey areas – such as where does a picket not engage in besetting or obstructive behaviour in a physical sense, but still has the same effect. This can occur in cases in which allegedly abusive signs or images like “Scabby the Rat” have the effect of causing an apprehension of fear in the mind of persons seeking to enter or exit a site and therefore whether those actions are also still unlawful.
Ultimately, the resistance to picketing activities falls to the individual businesses involved and their resources in terms of being able to bring matters before a court.
Even when orders are issued, enforcement of the orders becomes a further issue – which we will seek to explore in our next article.
* Chris Gianatti is a lawyer and a director with KHQ Lawyers
This article appeared in the July edition of DCN Magazine