Case: Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73
Outcome: discussed
It is clear that an important consideration in Davids was the relationship between s 127 of the WR Act , as it then was, and the definition of "industrial action". This was because, by virtue of s 127 , the Commission had no power to deal with picketing if it was not "industrial action". As their Honours noted, French J had previously discussed this relationship in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73 (" Laing "), where his Honour had relied on Lockhart and Gummow JJ's discussion of picketing in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 (" J-Corp ") at 555-7. At 569-70, Wilcox and Cooper JJ said: One question [in Laing] was whether the picketing activity at Muja was 'industrial action', as defined in s 4 of the Act. At 88 French J noted that the Muja picket line did not prevent entry and exit of staff of the power station who wanted to cross it, but 'fuel supplies to the power station were disrupted because fuel tankers did not want to cross the picket line'. He went on: The general concept of picketing was discussed by Lockhart and Gummow JJ in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 at 555-7. It is apparent that it is a wider class of conduct than industrial action under s 127. At common law it is not necessarily unlawful but may become so if it involves obstruction and 'besetting': Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA). To constitute 'industrial action' under s 127 picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a 'ban, limitation or restriction on the performance of work'. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer's premises and from carrying out their work could constitute a ban for the purpose of s 127. There are therefore circumstances in which picketing may be the subject of an order as industrial action under s 127. In this case the Commission's order literally applied only to such participation in picket lines as was industrial action. The term 'industrial action' provided the umbrella class within which all classes of conduct specifically proscribed by the order had to fall. This was reinforced by the reference in para (4) of the order to the application of the statutory definition of industrial action 'for the purposes of this order'. The particular picket line did not prevent entry to the power station premises nor was there evidence to suggest that it deterred or discouraged entry. Fuel truck drivers, however, did not want to cross it. It is arguable that the order did not apply to such picketing activity as had been undertaken. Whether it did or not would no doubt require a close investigation of the facts concerning the establishment and conduct of the picket. Australian Builders' Labourers' v J-Corp, referred to by French J, was a case under s 45D of the Trade Practices Act 1974 (Cth). That section did not use the words 'picket' or 'picketing'. The value of the passage cited by French J is that it demonstrates that activities falling within the general description of 'picketing' may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress. Activity that merely involves communication of information to persons entering or leaving a site is not 'industrial action', within the meaning of the definition in the Workplace Relations Act . Such activity clearly cannot constitute a 'ban, limitation or restriction on the performance of work' by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of 'industrial action'. However, consistently with the tentative view of the Full Court in [Giudice], we think the paragraph ought to be read as applying only to limitations on the work of those imposing ban. The history of the legislation and policy considerations persuade us it is likely parliament intended to confine the paragraph in this way. (Emphasis added.) 44 The discussion of French J in Laing cannot support the contrary conclusion, since it was not specifically concerned with the question whether para (c) of the definition of "industrial action" referred to bans, limitations or restrictions imposed by those performing the work. Rather, it was concerned with the nature of picketing as industrial action. In any event, Laing was the subject of the Full Court's consideration in Davids. 45 I accept that, in relying on Laing , Dowsett J in Temple v Powell [2008] FCA 714 at [50] - [52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act , which would extend the paragraph to unions. This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act , and his Honour's attention was not drawn to the relevant passages in Davids or Giudice . The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (" Leighton "), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice .