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Practical Applications of Industrial Action Employers’ Perspective

Practical Applications of Industrial Action Employers’ Perspective. Bruno Di Girolami 27 May 2004. Overview. 1. What is industrial action? 2. How can employers respond? 3. Forms of industrial action 4. General tips. 1. What is industrial action?. Industrial action is unlawful ( WRA )

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Practical Applications of Industrial Action Employers’ Perspective

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  1. Practical Applications of Industrial ActionEmployers’ Perspective Bruno Di Girolami 27 May 2004

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

  3. 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

  4. 2. How can employers respond? • Is action protected or unprotected? • Protected action = limited right to take industrial action with benefit of immunity

  5. Employers to look out for When action is unprotected • Defective bargaining period and industrial action notices • Multiple purposes of industrial action • No genuine negotiations

  6. Employer responses When action is protected • conciliation • terminate bargaining period • industrial torts

  7. Employer responses in AIRC When action is unprotected • s127 order (pros + cons) • industrial torts and s166A certificate • dispute notifications (s99)

  8. 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)

  9. 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

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

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

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

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

  14. Other strategies to consider • Police Act 1892 (WA) • s54A (disorderly assembly) • s82B (unlawfully remaining on premises)

  15. Secondary boycotts • Indirect boycott • Not directed at employer • Directed at third person to put pressure on target

  16. Secondary boycotts cont’d s 45D TPA: ‘… a person must not, in concert with a second person, engage in conduct…that 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.’    

  17. 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)

  18. Secondary boycotts are difficult to prove • ‘In concert’ means a meeting of minds • ‘Substantial loss or damage’ • are damages an adequate remedy (no injunction)

  19. Secondary boycotts • Profile of dispute • Interim relief • evidence gathering is crucial

  20. 4. General tips Nature • contemporaneous records • industrial dispute diary • key players

  21. 4. General tips cont’d Purpose • dominant purpose • union materials • needs to support claims for new agreement (ulterior purpose)

  22. 4. General tips cont’d Effect • economic loss • contracts (suppliers, customers) • profitability • goodwill/reputation

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