Unlawful Coercion in Industrial Disputes

Coercion is the practice of persuading someone to do something by using force or threats.  The Fair Work Act 2009 (the Act) contains specific prohibitions against coercion of employees in the workplace. These provisions are intended to prevent a variety of inappropriate work place behaviour, including the harassment that can occur during industrial disputes. This article looks at unlawful coercion in industrial disputes with reference to a recent federal case.

What is unlawful coercion?

Because an employer has power over the livelihood of their employees, it is all too easy for bosses to intimidate and coerce workers during industrial disputes, even if this is done unintentionally. The High Court of Australia held in Esso Australia Pty Ltd v The Australian Workers Union [2017] that a person’s belief about the lawfulness of their actions is irrelevant. Even if the person believed that their actions were justified and lawful, this has no bearing on whether the actions are considered coercion under the law.

The law aims to prevent the power imbalance between employers and employees from being exploited to create unfair bargaining conditions. During negotiation for an enterprise agreement, an employer cannot make a worker vote for the agreement by threatening to fire them, arranging their demotion, or detrimentally changing their roster. Coercive behaviour is unlawful even when it fails in its intent to force the worker to act against their will.

Not all unlawful coercion comes from the employer during an industrial dispute. In some Australian industries, notably building and construction, stevedoring, and mining, unlawful coercion has long been used to prevent workers from “crossing the picket line” and refusing to participate in industrial action such as strikes. Historically these tactics have been successful in strengthening the position of unions because the harassment and intimidation of so-called “scab” labour protects striking workers from being replaced by non-union workers. These campaigns of harassment often victimise the already vulnerable workers, including those who are recent arrivals in Australia or who have limited other employment options. While unions have undoubtedly won important rights and protections for Australian workers, the use of unlawful coercion is undoubtedly a shameful chapter in the history of industrial action in this country. 

The Act now protects the right of a worker to choose not to join a union and not to participate in industrial action. Section 348 specifically prohibits coercion in relation to industrial activities. A worker cannot be forced to use (or not use) a workplace right or exercise it in a certain way. This means that it is unlawful to force a worker to take part in industrial action such as union activities or strikes. It is prohibited to coerce a person to act against their will through threats, intimidation or fear, and interfering with their freedom of choice. As the Fair Work Ombudsman Anna Booth put it recently, no one should be subject to abuse or aggression for exercising their right to freedom of association, and ‘there is simply no place for unlawful intimidatory and threatening conduct against a worker choosing to go to work’.

Case study

Recently, the Federal Court heavily fined the Mining and Energy Union (MEU) and five former officials for breaches of section 348 of the Fair Work Act. The case of Fair Work Ombudsman v Mining and Energy Union (The Oaky North Coal Mine Case) [2024] related to verbal and written abuse of workers at a coal mine in central Queensland during industrial negotiations for a new enterprise agreement. The unlawful actions included:

• multiple instances of verbal abuse and inciting of verbal abuse of the workers and filming them arriving and leaving work at the mine
• publishing derogatory material about some mine workers on Facebook, including encouraging the publication of a list of ‘Oaky North scabs’ on Facebook

• posting ‘scab signs’ with the names of individual workers on the roadside outside the mine

In making his determination, Justice Rangiah found that the sustained, repeated and violent nature of this abuse would have detrimentally affected the employees’ wellbeing. His Honour also noted the need for general deterrence in making a judgment, as the conduct was a clear attempt to override the workers’ freedom of association to participate in industrial activities.

His Honour determined that the intent behind the union’s threatening and intimidating conduct was to bring about their preferred industrial outcome, in circumstances where they at least should have known that their conduct was unlawful. The judgment against the respondents was for $650,000, the highest penalty levied for breaches of this section of the Fair Work Act. The total penalty was composed of a fine of $535,500 against the MEU itself, as well as individual penalties for the five former officials involved in the contravention. These penalties varied according to the seniority of their position within the union, for instance the District President of the Queensland District Branch of the Mining and Energy Division was personally fined $85,680, while an Assistant Secretary of the same Branch was fined just $5,355. The Fair Work Ombudsman asserted that these court penalties were a warning of the seriousness of breaching anti-coercion statutory provisions.

As this case demonstrates, the Fair Work Commission treats unlawful coercion of workers during an industrial dispute very seriously. For any employment law assistance with enterprise bargaining, please contact Go To Court Lawyers on 1300 636 846.