Wednesday, 16 November 2011

The Untold Story: The ACCC’s role in the Waterfront Dispute


Part 3: Prelude to the Sacking

Introduction
Prior to discussing the events of April 1998, it is necessary to provide some relevant background.

There was great deal happening on the waterfront in late 1997 and early 1998.  The general feel at the time was that the Howard Government was trying to encourage the two major stevedores to take on the MUA.   

Prior to the decision by Chris Corrigan to sack his entire MUA labour force in April 1998, there had been three significant events which I will discuss in some detail – the Cairns dispute, the Dubai trainees incident and the Webb Dock hand over.  The combined effect of these three events was to create a strong presentiment that something major was going to happen very soon. 

Cairns dispute
The first skirmish started in Cairns on 13 September 1997.  This dispute involved the decision by a small shipping agent, International Purveyors, to terminate its stevedoring contract with the MUA and to use non-union labour instead.  The stevedoring contract was very small in the scheme of things – namely, to load one vessel, the MV Java Sea, with supplies for Freeport in Irian Jaya or West Papua.

The MUA responded to this decision by setting up a picket line with the intention of stopping the MV Java Sea from berthing.

On seeing the media reports, the ACCC’s Waterfront Team immediately commenced an investigation of the conduct. These media reports were the first that the ACCC had heard about the dispute.  After looking at the matter, we formed the view that any breach of the TPA would only occur once the MV Java Sea actually berthed and was prevented from loading supplies.  We believed that this conduct would breach section 45DB of the TPA. Prior to that event, the picket would not have interfered with international trade and as such would not have constituted a breach of section 45DB.

The Waterfront Team worked extensively with the Chairman, Commissioners and General Counsel on drafting a letter to the MUA. The aim of our letter was to warn the MUA not to do what it was proposing to do – namely, to boycott the MV Java Sea when it berthed.  I doubt I have ever spent as much time in my entire career in trying to finalise a simple two-page letter.  However, the length of time we spent on this letter was an indication that we recognised, even at this early stage, that the MUA was not the type of organisation to whom the ACCC could make idle threats.  We knew that if we were going to make any threats to the MUA about their proposed conduct our threat had to be credible.

Unbeknown to the ACCC, the MUA had decided to take an entirely different approach to this dispute than just organising a traditional domestic boycott.  As explaining in detail in Helen Trinca and Anne Davies’ book Waterfront: The Battle that Changed Australia (Waterfront), the MUA had been focused on trying to reverse the decision made by International Purveyors to cease using MUA labour. The MUA sought to do this by placing pressure on International Shipholding Inc., the owner of the MV Java Sea.

Waterfront recounts how Mr Trevor Charles the local representative of the International Transport Workers Federation had been trying to contact International Shipholding Inc to convince the company to intervene in the matter. It has subsequently been reported that the MUA and ITF made it clear to International Shipholding Inc. that unless it did its best to convince the relevant parties to rehire the MUA stevedores in Cairns its entire fleet could become the target of a global boycott.

Apparently, the ship owner agreed to intervene by contacting Freeport, the ultimate customer, to convince them to reverse their agent’s decision to use non-MUA labour.

The ACCC did not know all these details. All the ACCC knew was that the owner of the MV Java had intervened in some way and that the MUA stevedoring contract had been reinstated.

It is quite embarrassing to admit that the ACCC was entirely unaware of what was happening in the background to this dispute. 

In addition, we had not anticipated that the MUA would go off shore to try to influence the course of the dispute.  We had expected that they would have continued  their domestic boycott until the MV Java Sea arrived.

After this matter resolved on 18 September 1997 (a mere five days after it had started) the Waterfront team carefully considered what had just occurred. We realised that while we had not done anything of any significance, except spend an enormous amount of time on a two-page letter, we had learnt a number of important things, including a number of important things about the way the MUA operated.

First, it seemed to us that everybody else knew a lot more about what was happening on the waterfront than we did.  It was clear to us that Peter Reith’s office knew a great deal more than the ACCC about this particular dispute. However, we were not actually able to confirm our suspicions about Peter Reith’s role, until we read about what had happened in the Waterfront book a few years later. 

Second, we realised that we needed a strategy in the future to deal with any MUA conduct which occurred overseas.  We needed to know whether the ACCC could take action against the MUA under the TPA for offshore conduct. We also had to work out a strategy as to how to get the evidence to prove such an “offshore” breach.   

Third, time was going to be a more significant problem than we had anticipated.  This entire dispute had only lasted five days. To collect evidence and launch a case in this time frame was almost impossible unless we took a radically different approach to our investigation and litigation.

Dubai trainees incident
The Dubai dispute was a very strange event.  In early December 1997, stories started appearing in the Australian media that a band of former Australian soldiers were being trained in Dubai as part of a plot to take over the Australian waterfront and oust the MUA.  As you can imagine, we did not believe these reports when they first appeared as the entire scenario seemed much too farfetched.

From what we could understand at the time, various parties had funded a band of former Australian soldiers to go to Dubai to receive training on the operation of stevedoring equipment. We also understood that these individuals would be returning to Australia once they had received their training to become stevedores.   Everyone suspected that Corrigan would end up employing these individuals.

On becoming aware of this latest plan, the MUA immediately moved offshore.  The MUA effectively sought to put pressure on the Dubai government to prevent these individuals from getting training in Dubai.  It was also reported that the MUA had involved the head of the ITF, Mr David Cockcroft in its discussions with the Dubai government.

In mid-December 1997, the ACCC heard that the Dubai government had withdrawn the visas for these individuals so that they had to leave the without getting any stevedoring training.

The ACCC’s Waterfront team did not really know what to make of this entire event. One thing we did know at the time was that the MUA’s activities in Dubai did not contravene the TPA.  The MUA and ITF had pressured the Dubai government to cancel these individuals’ visas so they could not receive training in Dubai. This conduct did not breach either section 45D or 45DB of the TPA.

Accordingly, the ACCC never wrote a letter to the MUA about this particular incident. However, we again learnt a number of valuable lessons from having been a passive witness to these strange events.

First, we understood that the MUA was likely to call on the ITF in any dispute.  This was a significant development, as it suggested to us that the MUA might be able to protect itself from the TPA by seeking to mobilise overseas groups to act on its behalf. 

Second, I remember being very impressed by way the MUA had dealt with this issue.  Not only had they moved with lightening speed but they had also been able to identify and exploit the weakest spot in the strategy being employed against them.  The MUA immediately saw that their best approach was to target the Dubai government and put maximum pressure on them to stay out of the dispute. 

Finally, we now focused a great deal of our research on finding out more about the ITF.  We discovered that the ITF was an international trade union body which represented the interests of a large number of local trade union organisations in the transport area.  One of its most active members was the MUA. 

The aims of the ITW were set out in its Constitution as follows:

·         to promote respect for trade union and human rights worldwide
·         to work for peace based on social justice and economic progress
·         to help its affiliated unions defend the interests of their members
·         to provide research and information services to its affiliates
·         to provide general assistance to transport workers in difficulty

However, another significant activity of the ITF was to coordinateprotest messages, demonstrations and political pressure, to direct industrial action in the form of strikes, boycotts etc” in relation to local labour disputes. 

After looking into the ITF organisation in more detail at a later stage we were able to establish that it had structured itself in such a way that it would be effectively immune from liability to pay penalties or damages in the event it was sued for breaching or facilitating a breach of boycott laws.

Having said this we were also able to establish that the ITF’s power was derived entirely from the power of its local union affiliates in their home countries.  For example, the ITF had a great deal of power in Australia because the MUA had a great deal of power here. The only other place where it appeared that the ITF had considerable industrial power on the waterfront was on the West Coast of United States due to the industrial power of the International Longshore and Warehouse Union (ILWU).

Finally, we came to the clear realisation that nobody was keeping the ACCC in the loop on developments.  We were not being told anything by the Department of Workplace Relations about what was going on, nor was Chris Corrigan providing us with any information.   The irony was that when we went to interview potential witnesses, they seemed to think we knew all the details of the broader “plan” and that we were a part of this “plan”. 

In hindsight, it was much better that we did not know about the broader “plan”.  While it was quite embarrassing to be regularly unaware of the behind-the-scenes machinations of the Government and Corrigan, the ACCC would have been placed in a very difficult position had it know about this plan.  In fact, the MUA would have probably joined the ACCC in its conspiracy action against Corrigan and the Howard Government had we actually been in the loop.

Webb Dock handover
The third and final event relates to the decision by Patrick in January 1998 to lease Webb Dock No 5 in Melbourne to a new company called Producers and Consumers Stevedores (PCS).  Like the Dubai fiasco, details of this plan were again leaked to the MUA and the media before the actual handover of the site had been carried out.

When details emerged about PCS, it became apparent that it had been set up by the National Farmers Federation and Don McGauchie.  Also, included in its ranks were a number of the individuals who had been part of the failed Dubai training exercise. 

After looking into the matter, the Waterfront team formed the view that the PCS operation appeared to be little more than a training operation. In other words, PCS was planning to train various non-MUA individuals to be stevedores. We fully expected that the MUA would be focusing on preventing these individuals from getting employment as stevedores after they have been trained. However, for the moment it appeared that the MUA intended to maintain only a watching brief.

It also seemed to us that the MUA were desperately trying not to engage in any conduct which may constitute a boycott.  Even though the MUA did have a picket line at Webb Dock, it did not actually prevent the passage of individuals or vehicles onto the premises, although some buses got pretty smashed up on the occasions that they drove through the picket lines.  We were satisfied that while there was the occasional stoush between the MUA and the PCS employees as vehicles went through the picket line, that generally the MUA were doing their best to avoid engaging in an illegal boycott.

Office of Employment Advocate
The final issue which is relevant to understanding subsequent events relates to the anticipated role of the Office of the Employment Advocate (OEA).

The OEA was set up by Peter Reith in 1997 to enforce the Workplace Relations Act 1997 (WRA). The OEA had jurisdiction to enforce a range of the provisions of the WRA, including the Freedom of Association provisions.  These provisions made it an offence for an employer to dismiss an employee because he or she was, or was not, a member of a union.

I remember attending a talk given by Peter Reith prior to the Waterfront Dispute (we were given some free tickets). In his talk, Mr Reith made no secret of the fact that something had to change on the waterfront. He also made it abundantly clear that any attempt by the MUA to prevent such a change would most likely lead to the union having problems under the Freedom of Association provisions of the WRA.   In other words, if the MUA tried to take action to prevent somebody using non-MUA union labour on the wharves, the OEA's role was to ensure that that didn't happen.  Furthermore, he made it clear that the Commonwealth Government agency which would be keeping the MUA on the straight and narrow would be the OEA.  I do not recall Reith referring to the ACCC once during his talk.

I came away from Reith’s talk with the distinct (and pleasing) impression that it would be the OEA, rather than the ACCC, who would be at the forefront of any action against the MUA in what seemed to be the inevitable dispute. I also got the strong impression that the ACCC was not seen by the government as the agency which was feted to take the lead role in any action against the MUA.  This probably explained why the ACCC seemed to know so little about what was going on in relation to Cairns, Dubai and Webb Dock.

I was very relieved after hearing Reith’s speech. While I did not like some of the MUA’s conduct, particularly hold cleaning, I empathized with other MUA campaigns such as their campaign against flags of convenience vessels.  I had also seen enough of the MUA in action to respect their skills in dealing with disputes and to acknowledge their consummate ability to play the media. While the MUA was not the largest union, it seemed to me to be the smartest and most disciplined union, with a very strong leader in John Coombs.

However, I was also not entirely convinced that the OEA, as such a new agency, would be up to the challenge of “taking on” the MUA.  This is precisely what happened when the dispute broke out - the OEA immediately jumped ship, leaving the enforcement field entirely to the ACCC.

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