We’re joined by Simon Billing who’s a Partner in the Workplace Relations Employment and Safety Group at DLA Piper, and joins us from Perth, Simon welcome to BRR Media.

Thank you Kate.

Well Simon Toll Holdings is set to sue 20 of its employees and the National Union of Workers for damages over a Victorian picket line, can you give us some details about what’s happened?

Yeah Toll Holdings have been in a bargaining negotiation with the NUW, the National Union of Workers, and they have been put in what I view as a position that the system places a lot of employers in, where they have very options if the union that they’re negotiating with doesn’t act in a fair manner in relation to that bargaining, because this is a particular symptom of the bargaining system we have under the Fair Work legislation in Australia.  And the position that Toll were essentially in was that the negotiations had been going on with the NUW as the bargaining representatives for the employees, they couldn’t reach agreement, Toll reached the point where they believe that they had put together a fair proposal, they wanted to put that to their employees, the union representing the employees disagreed with that and went through the processes under the legislation to allow them to take what’s called Protector’s industrial action.  They did that, they went on strike and not only did they leave it at going on strike, the union with the assistance of some of those employees imposed a picket line on the premises and proceeded to blockade trucks and any transportation coming in or out of the premises which completely brought the Toll and Coles operation to a standstill.  Toll was left in a position where there was very little it could do except firstly try to go to the industrial umpire, Fair Work Australia, and claim that this was unfair bargaining under the Good Faith Bargaining Rules, unfortunately the umpire didn’t agree that blockading the premises was unfair bargaining and they were left with no option but to as a result of that decision go off to the Supreme Court and use the common law to order the Union and the 20 or so workers to desist from blockading the premises with the picket, simply because it had no other option under the system.

Well that’s you know certainly what I want to talk about now Simon, what are the available options for employers who are faced with this kind of illegal action by workers and unions?

Well there are two situations and they’re quite distinct.  One is the situation that Toll has found itself in, that is where they are actually bargaining and that is the one situation where under the Fair Work Rules, a union or a bargaining representative and the employees are allowed to take, as I say what’s called protected industrial action, which is industrial action which is lawful and is protected from any sort of civil suit being brought against the union or the people engaging in the industrial action.  And that can only occur while bargaining is going on.  Now what happened in Toll’s case was the unions went outside of that and took picketing action which isn’t considered in the normal industrial parlance to be industrial action, and therefore the only approach that could be taken to that is to use the common law.  Now there’s the other situation which a lot of employers also find themselves in where there is already an agreement in place, there’s already a deal in place, and under the Fair Work system, it’s unlawful to take any industrial action during the term of that agreement.  Now when that happens employers are also left with very few options, they can either go to the umpire, Fair Work Australia, and ask for orders that the people stop taking the action and if that’s not effective the only other option they have is to go off to the Federal Court and seek injunctions, and sadly that’s really – they are really the only options that employers in that situation have.

Yeah certainly, well what do you see as I guess the key considerations for employers, before they do make that decision to pursue action through the normal course?

I think obviously an important consideration for any employer is maintaining a good working relationship with their employees and where their employees are predominantly members of a union or unions, what is important to the business in terms of the relationship with those union representatives and with those unions.  And now it all too often reaches a position where because unlawful action is taken that relationship which is sometimes fragile breaks down.  Now the employer needs to decide have they reached the tipping where the damage that’s been caused to their business outweighs the potential longer term damage to that relationship, and if the answer to that question is yes, then I think they have little alternative but to look at the legal remedies available to them, and they are, as I’ve outlined quite drastic steps of getting court injunctions and the like become available.  And once they make that decision the important thing for the employer is to be prepared and to respond quickly to stem the damage that’s being inflicted on them.

But Simon we’d call this an option of last resort?

Yeah very much an option of last resort, and in some of the cases I’ve been involved in where in major infrastructure and resources projects, an employers put in the position where their operations are interrupted and they’re losing in the order of $1 million a day, it doesn’t take long to reach the point where they have to act even using these sorts of last resort options to stem the flow of the damage.

Yeah it certainly makes sense.  Simon thank you so much for sharing your insights with us today.

Thank you Kate.

That was Simon Billing, who’s a Partner in the Workplace Relations Employment and Safety team at DLA Piper in Perth.  Now listeners if you have any questions for Simon of course you can send them through either using the panel on your screen or via email to law@brrmedia.com.