Sympathy Strikes? Unlawful?22 Mar 2012 |
In this article, Lesley Brook examines whether sympathy strikes are unlawful.
When employees collectively refuse to carry out the “work in which they are usually employed”, that’s a strike. The Ports of Auckland dispute has resulted in employees of other companies collectively refusing to do work in sympathy with the affected staff at Ports of Auckland. Were they striking?
During the Ports of Auckland dispute, some ships have been worked in Auckland by waterside workers who are not members of the Maritime Union of New Zealand (MUNZ) and by port company managers. These ships then went on to call at other New Zealand ports: the Lisa Schulte at Lyttelton, the Maersk Aberdeen at Wellington, and the MV Irenes Remedy at Tauranga.
Employees at these other ports who were members of MUNZ or the Rail and Maritime Transport Union refused to work these ships in sympathy for their Auckland colleagues. Their argument was that the work in which they were usually employed did not include loading and unloading ships that had been worked by non-union labour.
In urgent interim injunction proceedings this argument was rejected by three different judges of the Employment Court. Working these ships was part of their usual work. They had refused to do usual work, they were acting together, so they were on strike. The strike was unlawful because the employees were not collective bargaining at the time and had not given 14 days’ notice of strike action. The Employment Court issued injunctions to require the employees to work the ships.
The unions also tried to claim in two cases that employees were entitled to refuse work because of a risk of their health and safety crossing a picket line. This argument failed because the pickets were peaceful and there were no threats to anyone’s safety.
A different result was achieved in one case however. The shipping company Maersk contracted a stevedoring company TLNZ Auckland Limited to load the Maersk Radford in Auckland. TLNZ Auckland’s stevedores did not usually work at this wharf or on container ships of this size, so it was possible the stevedores were entitled to refuse to do this work. It also appeared likely that Ports of Auckland Limited, employer of the striking workers, had allowed them to use that wharf. That would be a breach of the statutory limits on employing or engaging others to cover for the work of striking workers.
Prepared by Lesley Brook