Sunday 18th Nov, 2018

WORKPLACE RELATIONS: So you’re being picketed – what are your legal courses of action?


SO YOU want to remove a picket? Just get legal orders removing it. Sounds simple doesn’t it? Unfortunately, this is not necessarily so.

The key questions which you need to ask yourself (and then answer for the courts) are:

  • Who, or what, constitutes, the picket? There is no such legal person as a picket, so, who exactly are you getting orders against? Typically some might be your employees, but the majority will be a number of individuals who you have never known and can’t identify.
  • What is it that those legal persons are actually doing wrong legally? As we indicated in our first article, there is nothing wrong with just standing on a public footpath. We need to identify actual legal causes of action which make the activity unlawful in order to attract the attention of the courts.
  • What direct evidence do you have of the activity and how fast can you pull it together? Speed is important here. We need to do this quickly to get it into court before Monday becomes Tuesday and the picket has actually changed.
  • What processes do you have in place to serve your application on 100-200 picketers individually? Do you know their home addresses or how are you going to approach them to hand the documentation over in the proper manner to effect legal process service?
  • Even if you can get orders against some or all of the legal persons involved on the Monday or Tuesday, what are you going to do when the picket is still continuing on the Wednesday anyway because new people have turned up who weren’t the subject of any orders on the Monday or Tuesday?
  • How deep are your pockets? It can be time-consuming and costly to keep chasing something that can be as hard to grapple with as water for as long as it takes to make people subject to court orders and then drag them back to court if those people are in breach of those orders.

These are all questions that have vexed businesses for many years and they are all technicalities that unions and picketers take advantage of to stay ahead of the law, irrespective of how wilfully they have engaged in its breach.

We will return in this series to discuss the answers in all of these issues, but for present purposes it all starts with the big question: what are the picketers doing wrong legally so as to give rise to a cause of action to get the relevant orders?

The answer to that is hopefully one or more of the following:

  1. Trespass: It is unlawful to enter the property of another person without an express or implied licence to do so. This is why pickets form on public land or other land that is not owned by the relevant business being picketed – because that target business can only sue for trespass of its own land. Nevertheless, trespass will often be attempted so it is important to have clear delineation of property with fences, signs and security. This is useful in showing that the trespass was not inadvertent or that there was no argument available that there was an implied licence to enter until such time as that licence was expressly revoked.
  2. Nuisance: It is unlawful to disturb or interfere with the enjoyment of a person’s property from outside the property. Excessive noise, abusive signage and the impeding of access to and from a site can constitute an actionable nuisance. Evidence needs to be gathered about the time, location and nature of each and every source of the nuisance and the identity of the person causing it.
  3. Intimidation: It is unlawful for picketers to intimidate or physically threaten a third person (such as a delivery driver or a worker trying to cross the picket line) in order to coerce or injure the targeted business. Evidence of each specific incident of intimidation is essential to validate each act of intimidation – i.e. the time, location, persons involved, the nature of the conduct and the effect it had on the intimidated person and the target business.
  4. Interference with contractual relations: It is unlawful for a picketer, by their actions, to block entrance and exit to a site to damage the target business’ contractual or business relationships with a third party (i.e. a supplier of product to the site or the customer buying the products coming out of the site) which causes economic harm to the parties to the contract. One of the key elements to establish is the picketers’ knowledge of the relevant contract, so in some cases initial steps will need to be taken with a cease and desist letter informing the relevant picketers of the contract before action can be taken unless knowledge of the contract can be inferred by other means (e.g. if the picketers are employees, they can be taken to know that the interference was with a customer or a supplier).
  5. Coercion under the Fair Work Act: It is a civil penalty offence under the Fair Work Act to intentionally seek to coerce a targeted business to exercise or not exercise a workplace right (e.g. to make an enterprise agreement) by unlawful or illegitimate means (e.g. by conducting a picket which causes a nuisance or intimidation etc.). This also enables injunctions to be granted to prevent the unlawful or illegitimate conduct.

In anticipation of our next article in this series, I encourage you to think closely about what sort of evidence you would need to prove each element of each of the above causes of action. This will give some picture to the answers to the other key questions about which we will deal with in the next issue.

Part I – Picketing or community protests… lawful or unlawful?

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

This article appeared in the July edition of DCN Magazine

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