Sunday 18th Nov, 2018

WORKPLACE RELATIONS: Picketing Part III – Going to court


GETTING to court is where the rubber hits the road in dealing with pickets. But a court hearing doesn’t just magically happen – it can take 48-72 hours of hard work from you and your team. It can be even more problematic if your business is facing a picket for the first time. This can lead to panic, management indecision and an unwillingness to commit resources.

Regardless, preparation is key. The more preparation we can do in anticipation of a picket (and yes there is plenty), the quicker you can get to court and most importantly, with far greater likelihood of a decisive outcome.

So, what preparation can you do?

1. Have an agreed crisis management protocol in place
All bad decisions in a crisis are driven by panic and indecision at the wrong point of the cycle. Even if you are not facing any industrial disputes right now, a critical leadership agenda item for discussion now is what your crisis management protocol will (not may) be if picketing (or any other business continuity event) was to occur. Any failure to execute if or when the time comes can be disastrous and leaves you looking weak in your opponent’s eyes, which will only serve to encourage them to double down when things unfold.

2. Plan and upgrade your security
It’s critical to be aware of, and control, the security of your site. Do you have a controlled entry point to your site? What are your security arrangements? What is your relationship like with the local constabulary? What is your relationship like with WorkSafe (or the equivalent regulator)? Do you have security cameras in place at all entry points? What are your sign-in and induction requirements? Are they already strictly enforced? What are your arrangements for control of your visitor carpark? What is your traffic management procedure for movement in and out of your site? Does your business own a Handycam? The list is a lot longer than that, but you get the idea.


3. Start keeping track of your dispute early
Pickets don’t appear out of nowhere. In fact, a picket is a very extreme industrial response which only tends to occur after prolonged disputes. Even when they occur on a wildcat basis, they still arise out of a business decision that should have been anticipated to potentially trigger a picket. Tracking the dispute or planning the decision should have come a long way out. Having a sound understanding of all steps and relevant discussions from an early stage will help identify the root cause of the picket. This will be especially helpful in circumstances where a union turns up on the day and claims they are helping to discourage the picket, not cause it. As a separate issue under this general heading, when was the last time your managers did training on your right-of-entry procedure?

4. Give yourself a massive head start, brief your lawyers
To get into court, we need an originating application and supporting affidavit(s) setting out the background, the specific picketing events supporting the cause of action(s) and the damage. While it doesn’t sound like much, about 50% of the preparation can be done beforehand, which leaves time to monitor and collect evidence of the events. It is essential to be quick into court because every day is otherwise a new day – and if events have moved on from the point in time which your lawyers have prepared for because you then you may as well throw all that now out-of-date work (and legal cost) in the bin. To that end, it is worth investing in getting as much of the draft paperwork done beforehand as possible. If your lawyers are telling you at this point that they are still working on the background and still have to brief counsel, then you really are in a world of pain.

5. Have your staff collecting evidence ASAP
Your managers and team members need to be trained on incident management and immediate evidence collection so they can spring into gear straight away. Again, our ability in court is only as good as your ability to provide us with evidence as to the circumstances. Detailed contemporaneous diary notes, readily ascertainable surveillance footage, still photos with identifiable sources of attribution, copies of rosters, direct evidence of return to work directions and assimilated gate and leave records etc. are all just some examples of what your people need to be trained to have ready for us as soon as a picket begins.
I hope that helps for now to give you a flavour of what it takes to get to the start line, but hopefully it also gets you asking the right questions of your people and lawyers for if and when the time comes.

* Chris Gianatti is a lawyer and a director with KHQ Lawyers

This article appeared in the September edition of DCN Magazine

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