Sunday, 20 November 2011

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


Part 4: The Sacking

Industry Warning
One thing I almost forgot to mention was that a few months prior to Corrigan sacking his MUA workers, the ACCC issued a general warning to the entire industry to abide by the TPA. In the ACCC’s media release, dated 5 February 1998, it stated[1]:

ACCC waterfront investigations

The Australian Competition and Consumer Commission has warned all participants in the waterfront and shipping industries of their obligations to comply with the provisions of the Trade Practices Act.

"The ACCC is monitoring behaviour in these sectors", ACCC Chairman Professor Allan Fels said today, speaking at an industry conference on compliance with the law in
Sydney.

"The ACCC is ready to act in the public interest to enforce the primary and secondary boycott provisions of the Trade Practices Act, if necessary.

"Section 45D of the Act prohibits boycotts which have the purpose, and would have or be likely to have the effect of, causing substantial loss or damage, a substantial lessening of competition or preventing or substantially hindering trade or commerce," he said. "Section 45E prohibits contracts, arrangements or understandings which have the purpose of preventing or hindering the supply or acquisition of goods or services. Section 45 prohibits anti-competitive agreements generally.

"The ACCC has been monitoring events at Webb Dock and has had contact with major players. In the current circumstances there is potential for persons or organisations involved in the industry to engage in activity, especially boycott activity, which may breach the Act.

"In particular, members of the industry should be aware of the law, especially the above provisions, and, for example, avoid: involving themselves in the unlawful withdrawal of services to a ship or stevedore; unlawfully inducing other persons or organisations not to supply goods or services to a ship or stevedore; or unlawfully hindering the transport of goods to and from ports where any of these actions are in breach of sections 45D and E or any other provisions of the Act.

"The ACCC will enforce the boycott provisions of the Act in the same manner as it would enforce the Act against other anti-competitive practices.

"The ACCC is continuing its investigations of other waterfront issues including hold-cleaning demands, the existence of alleged exclusionary agreements between shippers, terminal operators and employee organisations, and some other matters.

"Whilst the ACCC investigates complaints from industry, it is worth noting that whether or not it receives complaints the ACCC can independently initiate investigations into breaches of the Act. A prerequisite for legal action, however, is market information and evidence. Industry participants who are concerned at breaches of the Act can bring forward such information and evidence to the ACCC on a confidential basis or any other basis, and the ACCC will consider whether it provides grounds for legal action.

"The ACCC also has power under Section 155 of the Act to require, where it believes that there may have been a contravention of the Act, persons or organisations to provide documents or other evidence or to answer questions that would assist the ACCC in determining whether there have been any breaches of the law."

The idea behind this media release had been to make it clear to all participants that the ACCC would not hesitate to enforce the relevant laws if there was a contravention. We also wanted to make it clear that we were looking at the conduct of both businesses and unions.

The media release was also aimed at letting potential witnesses know that the ACCC could compel them to provide evidence in the event there were reluctant to do so voluntarily.  Even at this early stage, it was apparent to us that many potential witnesses did not want to be seen to be assisting the ACCC. However, if we served them with a section 155 Notice they could claim they had been forced to assist the ACCC against their will.

The ACCC was criticised by a number of groups for this media release, including the Labor opposition, which saw the media release as an attempt to intimidate the MUA.  In reality, the media release was a naïve and misguided attempt by the ACCC to keep a lid on tensions on the waterfront.

The Sacking
At 11pm on Tuesday, 7 April 1998, Chris Corrigan sacked his 1400 MUA employees. 

When I came into work on the Wednesday morning, the general feeling was one of considerable surprise. Nobody that I was working with on waterfront matters had any idea that Corrigan was going to take this extreme step. 

In hindsight, there certainly were many warning signs that this action was about to take place. I immediately recalled an article which had appeared in The Age only a few days before. This article had quoted a PCS trainee, Mr Jamie Meek, who claimed that his Webb Dock instructors had told him that Patrick was going to sack its workforce on Easter Tuesday.[2]  Admittedly, his prediction had been out by a week, but it turned out to be surprisingly accurate.

During the course of the day, more details of what had happened the night before emerged. 

First, there were reports that Corrigan had given Peter Reith advance warning of his decision to sack his MUA workforce. 

Second, it also became apparent that there had been a great deal of forward planning by Corrigan.  The logistics of coordinating a lockout of 1400 MUA employees simultaneously at 17 different locations around Australia was not something that anybody could have organised overnight. Furthermore, Chubb Security had been hired to facilitate the removal of the MUA and to secure the worksites. This would have required considerable lead-times. 

It was apparent that Corrigan had been planning the sacking for many weeks.

ACCC’s first actions
The ACCC realised that it had to work out what we should do in response to the sacking. It was obvious that the waterfront was going to explode and that would need to be in a position to take action.

The first thing the ACCC did was make my waterfront team the full time waterfront investigation team. My three-person waterfront /mergers and asset sales team was now officially the full time waterfront investigation team!

The second thing we did was organise selected ACCC staff around the country to observe the picket lines.  We decided to do this by nominating two ACCC staff members from each ACCC office whose role it would be to observe local developments, namely the conduct of the picket lines. In most cases, we selected the regional director in each office and one other person. 

However, these officers were not to become part of the Waterfront team – ie they were not called on to collect evidence or assist in the preparation of the any potential litigation in the longer term.  Rather their role was to assist the Waterfront team on an ad hoc basis, which turned out to be limited to the first couple of weeks after the sacking.  The role of carrying out the investigation and preparing any potential litigation remained the responsibility of three-person Waterfront Team and its legal team. Indeed, the core Waterfront Team throughout the entire dispute never got larger than three people. 

However, a key decision maker during the Waterfront Dispute was Luke Woodward, the General Counsel of the ACCC at that time.

The third thing we did was increase the size of our legal team. The ACCC decided to use the Australian Government Solicitor as its lawyers on the case.  The members of the Waterfront team had enjoyed a very good relationship with a number of the AGS lawyers, so they seemed like the logical choice. 

We also immediately retained a number of barristers to assist in the matter. Prior to the sackings, the ACCC had been using one barrister to assist it on the hold cleaning case, namely a Queensland silk by the name of George Brandis QC. However, staff were never entirely comfortable with Mr Brandis as they had not selected him in the first place and had never worked with him before.

When the sackings happened, the team decided that it would not be appropriate to continue using Mr Brandis because of his lengthy and apparently quite close relationship with the Liberal Party. The Waterfront team wanted to avoid any perception that the ACCC was involved with the Howard Government in any way.  Accordingly, even though I am sure Mr Brandis would have done a competent job, the ACCC never used him on the waterfront case again.

The ACCC decided to retain a brilliant barrister, Mr Peter Comans, as the key legal advisor in the investigation and in any future litigation. The ACCC had used Peter quite extensively in the past and we had a very high opinion of his legal knowledge and technical skills.  However, the quality which I liked most about Peter was his creativity. Given that the ACCC was now embroiled in a unique situation and dealing with legislation which was largely untested (or in the case of section 45DB entirely untested) we knew that we needed a barrister who was highly creative. We knew that in the circumstances we would not be able to rely on traditional investigation and litigation strategies, particularly traditional approaches to evidence gathering.

We also retained a junior barrister, David Godwin, because of his extensive knowledge and experience in industrial relations laws. We did not want to make the mistake of only using lawyers who knew a great deal about the TPA but were ignorant of industrial laws and the way the Workplace Relations Act worked. David proved invaluable in explaining to the team the industrial relations issues which arose in relation to Corrigan’s conduct in sacking his MUA workforce.

Over the course of the dispute, we hired a number of other barristers to assist us including:

·       John Trew QC (an industrial relations silk);
·       Richard Tracey QC (now Justice Tracey of the Federal Court);
·       Stephen Gaegler, SC (the current Commonwealth Solicitor General); and
·       Simon White.

Observing the picket lines
The initial role of our handpicked ACCC observers was to attend various waterfront locations and simply observe what was happening.  These staff then were to prepare reports which formed the basis of briefings for the Chairman, Commissioners and senior management.

Being typical investigators, these ACCC staff could not just simply attend the picket lines and anonymously observe events. Rather most of them could not resist the temptation of getting heavily involved. Most of them, on arriving at the picket line, immediately sought out the person in charge of the picket line, introduced themselves as an ACCC officer and explained that they were there to observe the picket lines.  In the circumstances, this was a very audacious thing to do, as ACCC were highly unpopular with the MUA. 

In fact, the ACCC had the unfortunate distinction of being unpopular with all of the major protagonists in the dispute. The union movement did not like the ACCC because they believed that the ACCC should stay out of the dispute. Corrigan and the Howard Government did not like the ACCC because they believed we did not intervene in the dispute quickly enough.  I had a feeling we must be doing our job right if both sides were unhappy with our approach.

Emotions running high
It is important, in order to fully appreciate later events, to have some understanding of how high emotions were running during the Waterfront Dispute.

A good example of how inflammatory the situation was can be gained from the following incident.  Jennie George, the then President of the ACTU, was addressing a few hundred sacked MUA workers at Port Botany the day after the sacking. She reportedly shouted the following “fighting words” to the assembled audience:

I couldn’t believe it, when I woke at 5am, to hear that blackshirts, dogs on chains, had been used (to clear workers off the docks). Is this Australia or is it Nazi Germany?

These statements were quite representative of the way that many people in the union movement, including senior members of the ACTU, spoke about Corrigan’s actions at the time. There were many references to “Nazi Germany”, “Hitler”, “storm troopers” and “the blackshirts”.

I found such comments to be reprehensible at the time and I still do.  These comments had the inevitable effect of whipping up MUA members and their supporters into an absolute frenzy of hatred towards anybody behind the picket line or anybody trying to get through the picket line.  This hatred often spilled over to anybody who was not clearly “with the picketers”, including ACCC staff.

The popular image presented in the media about the Waterfront Dispute was generally that Corrigan’s security personal were violent thugs and that the MUA and its supporters were the peaceful and innocent victims.  I cannot agree with this characterisation.

I witnessed the wholesale destruction of buses full of non-union labour in Port Botany by out of control picket lines while the police stood idly by.  I also had to dodge rocks thrown at me by MUA supporters simply because I was on the wrong side of a picket line.  I had to escape from Port Botany by helicopter because it was simply too dangerous to try to leave the port by the public road because of rampaging picket lines.  Indeed, on one occasion I, an AGS lawyer and a poor unfortunate taxi driver came within seconds of being set upon by a few hundred picketers in Melbourne when we were again caught on the wrong side of a picket line.

The reality is that in most of the ports, Corrigan had between 15 – 30 staff behind the picket lines consisting almost entirely of security personnel. On the other hand, the picket lines had often more than 1000 picketers shouting insults, throwing stones at anybody behind the picket, and trying to push over perimeter fences to try to get at those inside.

The picketers also had a practice of trying to take photos of the people inside the picket lines and then trying to identify these people by name.  If they were successful in identifying one of the people behind the picket line, they would shout out the following threats the next time they saw that person:

“We know who you are and where you live.”

Picketers shouted this threat at me on a few occasions. However, I was not too worried, as I strongly doubted they did in fact know who I was or where I lived.

There is a very simple reason why the security guards wore balaclavas - it was because they were terrified that the MUA may identify them and subsequently take reprisal action against them.

I do not blame the individual MUA picketers or their supporters for all the violence, fear and destruction. Rather, I blame the leadership on both sides of the dispute for cynically using the events to pursue their own selfish aims.  By doing so these leaders put the safety of thousands of people at risk, including unionists, non-union workers, security personnel, members of the general public, police officers as well as a handful of ACCC staff.


[1] “ACCC waterfront investigations” ACCC News Release, dated 5 February 1998 - http://www.accc.gov.au/content/index.phtml/itemId/87384/fromItemId/378006
[2] “Young and rural, is this the wharves’ new face?”, The Age, News Extra, 4 April 1998, p. 5.

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