When is a picket line not “bargaining related”? Police and Fair Work Australia refuse to intervene in Coles and Toll dispute

Toll has been unable to stop people picketing outside a Coles distribution centre in Melbourne and preventing all access to the business.

Toll Holdings, which manages labour at the distribution centre, returns to the Supreme Court today in a bid to force an end to a picket that has stopped trucks entering and leaving the site since last Tuesday.

Normally about 300 trucks a day go in and out, however, Toll has failed to have the blockade lifted by Fair Work Australia after FWA found people physically preventing other people from having access to a property is not a “bargaining related activity”.

Toll is now applying to the Supreme Court for an end to the blockade under tort law to prevent a nuisance.

Toll Group spokesman Christopher Whitefield told SmartCompany that the company’s main goal was to assist its employees in getting back to work.

“Striking is legal, blockading is not,” Whitefield said.

“The effect of the blockade is to prevent our employees who wish to work from going to work. This is not fair for them and their families who rely on their wage to get by.”

Whitefield said while Toll respects the rights of union members to take lawful industrial action, “we do not tolerate dangerous and illegal actions by the union and its supporters”.

“No one should be denied access to their own place of work,” he said.

“The National Union of Workers leadership are condoning this unlawful and unsafe blockade. While, generally, the NUW shares our safety values, in this instance they have made the wrong call.”

Of the more than 600 employees at the site, Whitefield claimed less than half of those voted in support of taking the industrial action.

He said Toll already pays its workforce at the distribution centre 30% above the award rate for their positions and the offer it has made will increase this further.

M+K Lawyers principal Andrew Douglas told SmartCompany that Toll was struggling to stop the blockade because non-union members were participating in it and so an order against the NUW would not bring an end to the picket line.

“The difficulty is that it is very hard to identify if the people preventing access to the site are NUW members,” he says.

“Throughout Victoria we have issues with picket lines where it is ‘hire a picket line’. They are almost impossible to stop as you almost have to follow them home and find where they live and then serve an order on them.

“You can understand the level of frustration at Toll, some of the people stopping access may not be NUW members and that creates an incredible tension, which means you have to set up surveillance to identify people which only escalates the dispute.”

Douglas says a solution to the impasse would be for Coles to bring an application to FWA as an interested third party that is suffering loss as a result of the blockade.

According to Douglas, it is very difficult for Toll to make an application to FWA as the threshold test for employers is very high.

“The tests are so high for the company affected to bring the action that it is almost impossible to succeed and you saw that with the Qantas dispute.”

The issues raised by the Toll picket line are likely to continue to be relevant as Douglas says he is noticing a higher level of industrial activity with the NUW than he has seen for a long time.

“Over the last year there have been some of the most bitter industrial disputes that we have seen for the last 10-15 years,” he warns.

“I’m not sure what is prompting it, whether it is the economic circumstances or unions getting in early for the fear of the dark years that will follow if the Liberals get elected.”