Victoria International Container Terminal (VICT) reports that the picket at Webb Dock, originally commenced by the MUA on 26 November 2017, is still proceeding.

On Friday 1 December 2017, the Supreme Court of Victoria granted a 7 day interim injunction restraining the MUA from engaging in picketing within 100 metres of the 3 access points to the Webb Dock site.  The picket had prevented unloading and loading.  The interim injunction was granted on VICT's application, with the court finding that it had established a prima facie case of unlawful picketing by the MUA.

The Victorian union movement attended a rally at the terminal on Friday 8 December 2017 to support the MUA in its dispute with VICT.

The dispute is said to have arisen over VICT refusing to allocate further work shifts to a casual employee who was refused a Maritime Security Identification Card, owing to a conviction.  However, the issue appears to have escalated into a larger power struggle.  The CFMEU's boss, John Setka, who congratulated MUA union members for turning up last Friday, made comments aimed at encouraging them to ignore industrial laws, apparently stating "if we follow these laws, if we abide by these laws, we will never ever win."

These comments are of extreme concern, given that they are aimed at encouraging ongoing picketing activity, even where it is in breach of our industrial laws.  These concerns are heightened, given the current merger discussions underway between the MUA and the CFMEU.

Picketing activity of itself is not unlawful but can very quickly become unlawful, if it involves obstruction and besetting (ie harassing).

Unions can be liable to pay significant damages for unlawful picketing action, including committing the "industrial tort" of interference with contractual relations.  However, obtaining such an outcome takes significant time and expense to achieve and will not provide any disincentive to the most militant of union bosses.  For example, Mr Setka was quoted as commenting last Friday "sometimes you think, should we be doing this, we might get fined a few hundred thousand dollars and all the rest of it.  That's what (the unions) are there for."

Meanwhile, the victims in this dispute include not only importers and exporters, but also freight forwarders, customs brokers, farmers, transport companies and the Victorian public.

VICT has indicated that fresh produce is rotting on the wharf.  Imports affected include pharmaceutical goods, including EpiPens, prawns and other seafood, toys, Christmas decorations and machinery.  Exports include wine, cheese, frozen meat, oranges, stone fruit, pears, cotton, clay and large amounts of milk destined for China.  This will have a significant impact on Victoria's economy at a critically busy time of year.  It will also have a flow on effect to Victoria's reputation, impacting on business confidence and investment.

VICT is currently back in the Supreme Court seeking further injunctions to stop the picket lines (including against Victorian Trades Hall Council Secretary, Luke Hiiakari, as a representative of all protesters who gathering in support of the MUA). Submissions were put to the Court on 11 December 2017.

For goods on the water, freight forwarders and customs brokers are using best efforts to offload stock at different ports.  Where this results in the incurring of extra costs, the service provider will need to look to their terms and conditions to determine who is liable.

Where the industrial action is causing delays in the delivery of goods or, in the case of perishables, damage to the goods, parties will again need to consider whether their terms and conditions contain a force majeure clause and whether there are any notice requirements under that clause.

Hunt & Hunt's employment law team regularly advise business owners on the impact of industrial action, employment contracts, dismissing employees and redundancies, OH&S and enforcing restraints of trade.  If you need any advice on the legal issues associated with industrial action, or any other employment law update, please contact David Thompson (dthompson@huntvic.com.au) or Gisella D'Costa (gdcosta@huntvic.com.au) at Hunt & Hunt Lawyers.