labour law wrong

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.


Subscribe to our e-mail newsletter to receive updates.

, , ,

One Response to labour law wrong

  1. rob durbridge July 17, 2012 at 3:27 am #

    The dispute at Coles’ Toll warehouse at Somerton highlights the loss of industrial rights under the Gillard Government. Toll cites the rates as being above the Modern Award…knowing that those rates are so low that they are uncompetitive. Apart from Workchoices, the IR system in Australia would have allowed an award to be made to redress the obvious inequity between workers employed by Coles and others employed by Toll outsourced by Coles doing the same work.

    The only redress lies in direct action with community solidarity and support demonstrated so well in the Baida dispute, something the Supreme Court injunctions are designed to prevent.

    In her speech to the recent NSW ALP conference, the Prime Minister and architect of the “Fair Work Act” said that there would be no changes to the Act from her government. This pre-empts the work of the McCallum Review of the Act which received hundreds of submissions including many from unions on the shortcomings of the legislation.

    The PM has form with this modus operandi. The Gonski Review of school education funding spent three years consulting every “stakeholder” but elite schools were assured by the PM prior to the review that they would not lose “one dollar” in funding whatever the recommendations.

    And the rightwing of the ALP cries about the votes that the Greens have “stolen” from it?