Fair Work rules employer lockout unlawful

Unions overturn Fair Work decision allowing employers to lock out workers before they strike.

McCain Foods workers at the company’s Smithton operations were locked out after the AMWU gave notice employees intended to take protected industrial action.

Unions have successfully challenged a Fair Work Commission decision that backed the right of employers to lock out workers ­before they took legal industrial action.

A commission full bench ­majority upheld an appeal by the Australian Manufacturing Workers Union, finding a pre-emptive lockout of Tasmanian workers by frozen food giant McCain was unlawful under the Fair Work Act.

ACTU president Michele O’Neil said the outcome was “an important win for workers around the country as it makes clear that companies cannot use lockouts as a pre-emptive ­weapon to intimidate workers seeking a fair deal”.

McCain Foods workers at the company’s Smithton operations were locked out after the AMWU gave notice employees intended to take protected industrial action in response to an earlier two-day lockout by the company.

Fair Work deputy-president Richard Clancy had said he was satisfied the action taken by McCain Foods was protected industrial action and in accordance with the Fair Work Act, but the full bench majority said an ­employer-initiated lockout of workers “will never be protected employer response action if it pre-empts the taking of industrial ­action by employees”.

“It is not sufficient that industrial action is being organised, or that it is threatened, imminent or probable,” the majority said.

Ms O’Neil said the decision “upholds the right of working people to strike and says employers can’t behave like thugs by locking workers out illegally”.

“These workers have been loyal to McCain, risking their own health while working through the peak of the pandemic and even agreeing to take lower pay rises in the past to help McCain stay in business, but now the frozen food giant’s profits are soaring again it’s time these workers’ loyalty and dedication were repaid,” she said.

“McCain has to stop treating Tasmanians like they’re second-class citizens. It’s time for them to respect their workforce and negotiate a fair agreement.”

The AMWU says the Smithton workers are paid 15 per cent less than McCain employees in Victoria doing the same work.

It has sought annual 4 per cent pay rises for three years; the company has offered 3 per cent a year.

AMWU national secretary Steve Murphy said the full bench majority decision was “a win not only for these essential workers in the far northwest corner of Tasmania but for workers and their unions nationwide – it protects what little right to strike we ­already have”.

“We need to protect what we have. Our bargaining system already makes it difficult for workers to take action,” he said. “The commission’s initial decision was unfair, and if allowed to stand … would have set industrial relations back more than a decade.”