14 June 2018

What a nuisance: getting interim relief from unlawful picketing

Interim remedies are available to employers who suffer loss from unlawful picketing activities – Yakult Australia Pty Ltd v National Union of Workers & Ors [2018] VSC 151. 

Key impacts

  • Picketing activities will be unprotected industrial action where the activities constitute a nuisance to the employer’s business or land.
  • Employers are able to apply for an interlocutory injunction to allow their business to continue without disruption, pending determination of whether or not the action is unlawful.

Facts

Yakult Australia and the National Union of Workers (NUW) were in dispute regarding the terms and conditions of Yakult’s employees at one of its production plants. As part of this dispute, the NUW organised, and the employees engaged in, protected industrial action in the form of an indefinite strike. At the same time, Yakult’s employees and NUW representatives engaged in picketing activities at its production plant, which involved preventing access and egress to and from Yakult’s plant. As a consequence, Yakult was unable to make deliveries of product to its customers (including Coles and Woolworths). Particular employees and representatives were videotaped and witnessed blocking delivery vans and stating that they would not let anyone enter or exit the premises.

Outcome

Yakult sought an interlocutory injunction to prevent its employees and the NUW representatives from continuing the picketing activities. Yakult’s position was that the picketing activities constituted a nuisance, and interfered with the employer’s contractual relations with third parties (including customers). Yakult did not take issue with the employees engaging in, and the NUW organising, protected industrial action but rather relied on the fact the conduct fell outside the regime established by the Fair Work Act 2009 (Cth).

The Supreme Court of Victoria granted the interim injunction as Yakult was able to show, amongst other things, that the picketing activity was having a significant adverse effect on its legitimate business activities, including a net loss of profit of approximately $288,000 since the commencement of the picketing activity.

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