DCN0718_Combined_150

Picketing is not a form of industrial action – so it
cannot be immune from suit under the current
legislative scheme for protected industrial action
“cause those persons to hesitate through
fear to proceed or, if they do proceed, to do
so only with fear for their own safety or the
safety of their property”.
The first actual statute to stop
picketing in Victoria was enacted by the
Napthine Coalition government in 2014.
This made it an offence to engage in
picketing behaviour and initially saw
the police begin to take a more active
role in picketing situations. However,
this legislation was repealed by the
Andrews Labor government shortly after
taking power.
This has left it now to the Court to
continue to regulate unlawful picketing.
Key cases include that picketing:
• is not a form of industrial action – so
it cannot be immune from suit under
the current legislative scheme for
protected industrial action under the
Fair Work Act; and
• despite the defences used by unions
historically that they cannot be
responsible for the individual actions
of picketers who they do not allegedly
know or have association with (i.e. it
is up to each individual on a picket to
be responsible for their own conduct),
unions have recently been held to
be “representative” defendants of a
court action and therefore be so found
to be responsible.
There is still a range of grey areas –
such as where does a picket not engage
in besetting or obstructive behaviour
in a physical sense, but still has the
same effect. This can occur in cases in
which allegedly abusive signs or images
like “Scabby the Rat” have the effect of
causing an apprehension of fear in the
mind of persons seeking to enter or exit a
site and therefore whether those actions
are also still unlawful.
Above: Chris Gianatti is a lawyer and a
director with KHQ Lawyers in Melbourne
Ultimately, the resistance to picketing
activities falls to the individual
businesses involved and their resources
in terms of being able to bring matters
before a court.
Even when orders are issued,
enforcement of the orders becomes a
further issue – which we will seek to
explore in our next article.
QUARANTINE APPROVED: 1.1, 2.4, 2.41, 2.5, 2.5.2
DOAWR: N2416 / N3063
UNDERBOND: FV68J
EXPORT: 2035
9 DOAWR manned depot
9 In-house fumigation service
9 Export grain/seed & timber inspections
9 Export container inspections
9 DOAWR approved wash bay/steam
clean bay
17 BAKER STREET, BANKSMEADOW NSW 2019
thedcn.com.au July 2018
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