Apart from the merits of the workers’ claims in the Coles/Toll dispute that I support, I want to comment on the failures of our labour law.
Now this is a lawful strike, protected action. Workers cannot be dismissed or fined or disadvantaged taking this industrial action and the union cannot be sued under the Fair Work Act or common law.
But the contradiction is that as soon as the workers walk out and establish their picket, then they are liable, as here, for
a Justice to say that the effective picket is unlawful and injuctions/orders are made.
This is wrong, unfair and means against corporate lawyers the lawful strike can be defeated.
Really the Justice if at all even handed and applying equity and respecting ‘protected action’ ought to rule that the effective picketing is also lawful.
But injuctions have been made. Judges feel bound by ancient master and servant common law dictums that all strike action is a wrong and employers have the right to get orders to stop the action.
Either the Judges should rule for the workers and the picket is protected as well or the labour law should be amended to ensure the lawful strike achieves it’s purpose, namely a fair opportunity for workers to bargain and settle their claims through negotiation.
Unbelievably one of the most ancient of 18th century common law doctrines against the picket is that of ‘watching and besetting’ i.e. the judge can order the workers to stop collectively ‘watching’ or peacefully gathering and ‘besetting’.
So under the Fair Work Act you can have a lawful strike and when it starts the more powerful corporation – here Coles and Toll – can stop it.
So much for the right to strike.
Minister Shorten should really correct this.