Lilburne warns on long action for IR disputes

An upsurge in strike activity and the prospect of major Federal Government reforms has placed industrial relations front and centre as a business issue in Western Australia.

Lawyers have been at the forefront of many recent disputes, as companies tire of traditional mediation and opt for legal action.

Leighton Holdings’ subsidiaries John Holland and Broad Constructions are the latest companies to pursue litigation.

In their sights is the state’s most militant union, the Construction, Forestry, Mining and Energy Union (CFMEU), which they allege has caused disruption on a series of projects across Perth.

Clayton Utz partner Glen Bartlett said employers had become more willing to pursue litigation against unions but only after pursuing other options.

“Invariably there are lots of discussions and a long build-up to the litigation. Court action is usually taken only after negotiations have been exhausted,” he said.

A case in point is his client, Wesfarmers Premier Coal, which took court action only after hearings before the industrial relations commission and the coal industry tribunal failed to resolve protracted disputes with maintenance workers and mine workers.

Mallesons Stephen Jaques partner Rob Lilburne said companies that planned to pursue legal action needed to be steeled for a battle. “You have to be focused to do that, you really need to follow through,” Mr Lilburne said.

On the union side of many disputes is law firm Slater & Gordon, whose clients include the CFMEU, the Transport Workers Union and the State School Teachers Union.

Partner Toby Borgeese, who recently moved to Perth to head up its employment and industrial relations practice, agreed it was unusual for employers to be lodging so many damages claims at the same time.

“There is certainly a bit of an upsurge right now,” Mr Borgeese said

He believed the Federal Government would use its majority in the Senate to legislate to over-ride court decisions it doesn’t agree with.

Mr Borgeese said unions had always sought creative ways of achieving their goals within the legislative rules, and this would be a bigger challenge in future.

“We will need to constantly develop new tactics,” he said.

One of the biggest changes mooted by the Federal Government is the introduction of a single national industrial relations system.

Mr Bartlett believed this would be a positive development.

“Having the two systems has added another layer of complexity,” he said.

“A unitary system does make a lot of sense in terms of simplifying things and would be a significant achievement by the Federal Government.”

Mr Lilburne is cautious about the significance of the planned reforms. He likens the reform process to a pendulum rather than a continuum and is therefore wary about its lasting impact.

However, there is agreement about the significance of the planned building industry taskforce, which will have extraordinary powers to improve compliance in the building and construction sector

Clayton Utz senior associate Saul Harben said the taskforce would affect employers and unions, who would be unable to engage in the deal making that historically has characterised much of the sector.

He said the interim taskforce had already prosecuted employers and unions and the threat of more prosecutions would be a strong incentive for industry participants to change their practices.

Mr Borgeese described the planned taskforce as an “extraordinary creature”.

“Even if employers don’t want to engage in bitter fights, the taskforce will be free to do so with the benefit of information they can compulsorily acquire from employers,” he said

While litigation attracts the headlines, Mr Lilburne said most of his work was project related, to help create an appropriate workplace relations environment.

“The more important side for us is the front end, providing the strategic advice,” he said.

Mr Bartlett advised companies establishing new projects to focus on their business objectives and likely issues before developing a workplace relations plan.

He said employers also had to be realistic about what they could achieve. For instance, an employer may seek to transfer its workforce onto individual workplace agreements but, if some staff did not consent to the change, they would be left with workers operating under two systems.