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WORKPLACE RELATIONS
Picketing or community
protests: lawful or unlawful?
Ports, stevedoring and logistics operators have been subjected to an increase in
picketing activity in recent times. Considering this, lawyer Chris Gianatti explores
the contemporary history of the practice.
PICKETING IS UNFORTUNATELY
nothing new on the Australian industrial
landscape, nor on the international
industrial landscape generally.
Nevertheless, it has been particularly
prevalent in Australia and has always been
the subject of debate as to its lawfulness.
Picketing is most commonly known
as a form of industrial protest outside
the gates of a business’ premises in
which people line up as “pickets” – that
is, forming a barrier to entry or exit
of the premises. Barbecues, caravans,
vehicles, tents and portaloos are just a
small number of items that have become
additional features of modern pickets.
As far as protesting generally goes, in
a free country with certain privileges in
relation to freedom of speech, political
expression and assembly, protesting
(whether industrial or otherwise) has
always been a part of the fabric of
lawful democratic society, even without
a bill of rights. As to the uglier side of
picketing beyond mere protests, picketing
has also been synonymous with actual
or threatened physical confrontation,
damage to property and, of course, the
blockading of access to and exit from the
premises that is more akin to a battlefield
siege than a protest in the causing of
potentially irreparable economic and
social damage to a business and its people.
The legal history of picketing has
therefore been very much concerned
with distinguishing the unlawful
elements of picketing from perfectly
lawful conduct.
The landmark “Dollar Sweets” case
in Victoria in 1986 was the first decision
of a court to put beyond doubt that
there were several unlawful elements
of picketing. The case involved the
establishment of a picket line outside the
Dollar Sweets factory in Melbourne, by
staff seeking a 36-hour week. The picket
line remained for 143 days, with the
company sacking workers and refusing to
reinstate them.
At the time, the assembly of people
off the roadway, valid parking of vehicles
within designated areas and signage
when not in an obstructive location
were not breaches of council or Roads
Department regulations. Despite the
Commissioner of Police determining
that a police presence was not required,
Justice Murphy of the Victorian Supreme
Court found that the picketers conduct
went well beyond peaceful assembly. He
found that conduct included besetting
behaviour which he regarded as an
obstruction with hostile intent so as to
John Kershner
58
First published in 1891
July 2018
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