While picketing is a common form of protest during workplace disputes, it isn’t always unlawful. Learn when picketing is protected under the Fair Work Act, what actions can cross the line into illegal conduct, and how employers can respond to unlawful picketing.

Q. Our company is currently involved in bargaining regarding negotiations in relation to a proposed enterprise agreement. The employees have taken protected industrial action in protest over certain terms of the draft agreement.

While there is no union involved in negotiations, striking employees have formed a picket line outside the company workplace, which is causing some difficulties for suppliers delivering to the premises. While there is no argument that the industrial action is ‘protected’ as it relates to bargaining related to a proposed enterprise agreement, management is not sure whether picketing is regarded as unlawful and consequently the employees could be ordered to cease such activity. Is picketing considered unlawful for the purpose of the Fair Work Act?

A. Picketing itself is not necessarily unlawful, particularly if it is simply a protest action, nor would secondary boycotts, intimidation and community protests ordinarily constitute industrial action as defined by the Fair Work Act.

 

What is ‘picketing’?

The term 'picketing' usually refers to an industrial tactic involving the physical presence of strikers outside a work site. It may also include blocking access and/or egress for all or certain persons to or from the work site (measures that may easily lead to breaches of public order). For example, the industrial torts involved in Dollar Sweets Pty Ltd v Federated Confectionery Association of Australia & Ors. (1985) VR 383, were obstruction and besetting.

 

Lawful conduct

Conduct which would be considered lawful includes persons assembling outside a workplace and making known to others including people to and leaving the workplace the fact there is an industrial dispute, what their dispute is about, and what they claim are the merits of the dispute.

 

Unlawful conduct

Picketing becomes illegal at common law when peaceful dissuasion gives way to obstruction and besetting, where there is a risk of interference with commercial contracts, and where the actions involve criminal offences such as assault and blocking public highways. These laws can be invoked whether or not injunctions (that is, orders to stop/cease certain actions handed down by a court) have been granted. In reality, police discretion and practical options affect what actually happens. Other unlawful conduct may include trespass, obstruction or interference, coercion or harassment, violence or damage to property. Whether the conduct is unlawful and actionable by an employer will depend upon the circumstances of each case.

 

Legal action

Where unlawful conduct has occurred, courts have issued orders binding particular classes of people (called ‘representative orders’) in relation to picketing, while the Fair Work Commission and the courts have enforced an employer’s right to discipline employees following unacceptable conduct during a picket. The Fair Work Act (s.418) provides for orders to stop or prevent industrial action if it can be shown that it is not protected action in the course of legitimately pursuing an enterprise agreement, and Fair Work Australia thinks that it is appropriate to make such an order.

 

What is ‘industrial action’?

‘Industrial action’ is defined by the Fair Work Act (s.19) to mean:

the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

  • a ban, limitation or restriction on the performance or work by an employee or the acceptance or offering for work by an employee;

  • a failure or refusal by an employee to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

  • the lockout of employees from their employment by the employer of the employees.

Under the Fair Work Act, engaging in protected industrial action is a workplace right. This means an employer is prohibited from taking adverse action against an employee in response to protected industrial action.

 

Bottom line

Picketing itself is not necessarily unlawful, but may become unlawful if it involves trespass or obstruction, or conduct of a criminal nature, or interference with commercial contracts.