Insight

United We Stand—But Lawfully

Reshaping the boundaries of trade union conduct: recent Australian developments.

United We Stand

Henry Skene and Mitchell Brennan

May 23, 2017 12:19 PM

Several developments in the last year have reshaped regulation of trade union conduct under the Australian workplace law.

Policy Measures: Increased Scrutiny on Trade Union Conduct

On the policy front, the current conservative government has implemented three measures addressing unlawful behavior by unions and their members. The measures address the findings of former High Court Justice John Dyson Heydon AC QC in the Royal Commission into Trade Union Governance and Corruption in 2015.

Two key measures passed in late 2016.

The Australian Building and Construction Commission (ABCC) was reformed. The ABCC regulates participants in the building and construction industry. Its functions include implementing a code of practices to regulate workplaces and taking action to prosecute breaches of workplace laws. Sanctions can be imposed to exclude companies from tendering for government funded building work. The return of the ABCC has been generally welcomed by the construction industry. It is expected to repeat the effective reform of union practices achieved by the previous ABCC in the mid-to-late 2000s.

A new regulator was also introduced. The Registered Organisations Commission (ROC) was established to enhance governance and financial accountability of trade unions following multiple findings of the misuse of union funds. The regime draws upon statutory duties placed upon company directors under Australia’s corporation’s law. Financial reporting and disclosure obligations have been strengthened, and penalties for non-compliance have increased, including criminal offenses for serious breaches. New whistle-blower protections have also been introduced.

Further new laws have been proposed to prohibit making or receiving corrupting payments at the direction of unions. These measures are directed at tightening the noose on questionable fundraising for union causes.

Caselaw: Novel Application of Anti-Bullying Protections

On the case law front, a recent decision of the Fair Work Commission (FWC) in its anti-bullying jurisdiction provided a novel application of existing law to address unlawful behavior by unions in industrial disputes. The decision recognizes that abusive or offensive conduct directed at other workers won’t be excused in the heat of industrial battle.

The catalyst for the dispute was caused by a change of a contractor providing maintenance services at a site on terms opposed by the unions. The dispute was heated, and a picket at the site continued for almost six months. Drawing on the power to name and shame, the union-led campaign also included an extensive use of social media (which was also aimed against individual workers) as well as a boycott of the targeted company’s products and fundraising activities.

A key priority for the new contractor was to protect its workers from being bullied at the site and on social media. The FWC made orders against unions and officials to restrain conduct directed at workers entering or leaving the site during the dispute.

The FWC orders prevented:

  • photographing, filming, or digitally recording any of the workers (or attempting to do such things);
  • abusing or harassing workers, including calling out offensive or insulting names, including “scab” or “dog”;
  • accosting or obstructing workers;
  • holding up any signs or material at the picket that contain offensive or insulting language toward the workers; and
  • approaching a worker, any vehicle driven by a worker, or a vehicle in which a worker is a passenger.

The FWC also determined that it was appropriate to make orders protecting the identities of workers seeking the orders. This should provide comfort to workers subjected to similar tactics in the future.

This matter represents the first time the FWC has made anti-bullying orders against a union and picketers in relation to protest activity as well as a novel and effective use of the FWC’s anti-bullying jurisdiction by employers. Prior to this decision, the FWC’s anti-bullying jurisdiction, which commenced in 2014, was most often used by individual employees against employers and managers.

Traditional employer responses to picketing have involved seeking injunctions to stop such activity, which can be time-consuming and costly. The FWC’s anti-bullying jurisdiction supplements these options with a quick and cost-effective alternative to counter intimidation during union organized picketing.

-------------

Henry has more than 15 years of experience advising employers and business owners in all aspects of workplace relations. He is known for his strong rapport with clients and for working collaboratively with business owners and managers to assess business problems and implement innovative, commercially-focused, long-term solutions. Learn more at www.seyfarth.com/henryskene.

Mitchell is an associate in Seyfarth Shaw’s international employment law group. Mitchell advises employers in relation to a broad range of employment and industrial relations matters, including workplace strategy and litigation. Prior to joining Seyfarth Shaw, Mitchell served as an associate to a commissioner of the Fair Work Commission, Australia’s national workplace relations tribunal. Learn more at www.seyfarth.com/mitchellbrennan.

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky