In Brief
- The Napthine Government’s ‘move-on’ laws have now been repealed, meaning that the broader Police powers to direct individuals to leave a public place (and thereby disperse a picket) have been removed and Police only have their pre-existing and more limited powers in this respect.
- It is therefore more important than ever that employers be ready and prepared to take proactive steps (beyond seeking appropriate assistance from the Police) to protect their business when faced with an unlawful picket, which can arise with little warning and quickly have harmful ramifications.
- Businesses should also consider engaging with regulators such as Fair Work Building and Construction and the Australian Competition and Consumer Commission (ACCC) where there is a concern that they are being subjected to unlawful behaviour.
Repeal Of Police ‘Move-On’ Powers
There have in recent times been a number of developments in relation to the laws concerning the management of, and available responses to, unlawful pickets, which can have particularly harmful consequences for business and often arise with very little warning.
One of the developments we discussed was the introduction of the much publicised ‘move-on’ laws, through an amendment to the Summary Offences Act 1966 (Vic) (Act), which gave Police new powers aimed at enabling them to effectively respond to pickets. Effective 26 March 2015, the additional Police powers previously contained in the Act have now been removed from Victorian Law.
The ‘move-on’ laws previously gave Police power to:
- direct individuals to leave a public place on the basis that they were, or were likely to, cause a reasonable apprehension of violence in others, unduly obstruct other persons or traffic, or impede another person from lawfully entering or leaving premises,
- compel individuals to whom they intend to issue with a direction to ‘move-on’ to provide details such as their name and address, and
- make an application to the Court for an ‘exclusion order’, prohibiting individuals from attending at a public place from where they had previously been ordered by the Police on a number of occasions to ‘move-on’.
Accordingly, following the repeal of the broader ‘move-on’ powers set out above, Police powers to direct a person to ‘move-on’ are again limited to circumstances where that person is (or is likely to be) breaching the peace, endangering safety or causing damage to property.
Ramifications For Your Business
The repeal means that the other legal developments outlined in our previous article assume greater importance.
In the absence of Police powers aimed specifically at the dispersal of pickets, employers may need to also seek their own legal redress to protect their business when faced with such activity. For example, employers may need to seek injunctions (potentially in the form of a representative order) against those involved in the blockade and appropriately manage the business’ employees.
Ideally, this requires employers to have a response plan prepared in advance and in place that may be activated at short notice. In this regard, useful things to consider are ensuring that, as far as possible:
- one company representative is nominated to be present to observe the entirety of the behaviour and coordinate the taking of detailed notes,
- video footage of the picketing activity is captured,
- accurate records of all communications with relevant unions are kept, and
- the business is clear on exactly what the impact (and cost) to the business of the picket will be.
Possible Regulator Intervention
We may also see regulatory bodies being prepared to hold unions to account for any unlawful conduct engaged in to further an industrial agenda.
In this regard, the ACCC continues to press its current proceedings against the Construction, Forestry, Mining and Energy Union, alleging that the union engaged in secondary boycott activity against two Boral entities by attempting to ‘cut the supply line’ of concrete to Grocon in the course of the 2012 Myer Emporium dispute. Employers should consider engaging with the ACCC where they consider that their business is being unlawfully impacted by anti-competitive behaviour.
The Director of the Fair Work Building Industry Inspectorate has also brought proceedings in relation to conduct in pickets. On 19 March 2015, the Federal Court found that the CFMEU engaged in unlawful coercive behaviour against Grocon by blockading the Myer Emporium and McNab avenue sites to pressure the company to hire union-nominated shop stewards.1 This matter will progress to the next stage where the Federal Court will determine the appropriate remedy.
End Notes:
For further information, please contact:
John Cooper, Partner, Herbert Smith Freehills
john.cooper@hsf.com
