Wednesday, 7 December 2011

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 8 - Easter Aftermath

Part 8 – Easter Aftermath

Close call

When I got back to work on Easter Monday, I found out that it had not just me and my Assistant Director who had been in the thick of things over Easter. The ACCC’s NSW Regional Director (RD) had also had a very close call.

It turned out that our RD had decided to go down to the picket line on Saturday morning to observe events. Unfortunately, he had gone alone, as no other Sydney staff member had been willing to go with him. On arrival, he did what most of the ACCC’s RD's had been doing – he introduced himself to the leaders of the picket line as the ACCC’s NSW Regional Director and advised them that he was there to observe events.

During the picket, a number of MUA members and their supporters had been listening to the radio. There had been a running commentary on the radio about developments at Port Botany and the movements of the Australian Endeavour.

At some stage during the broadcast, Professor Fels had come on the radio and announced that the ACCC had a number of officers observing events at Port Botany. While this was supposed to be a reference to me and my colleague, who were behind the picket lines, it was immediately understood by everybody on the picket line to be a reference to the ACCC RD who, it now seemed, was on the “wrong side” of the picket line. After Professor Fels made his comment, one of the picketers immediately turned to the rest of the picket line shouted - “That’s the ACCC guy” and pointed at our RD. At this, half a dozen picketers started walking rapidly towards the RD.

It was apparent to the RD that these pickets meant to cause him harm. Accordingly, the RD started to move away from the men and towards his car, very quickly. He got to his car, jumped in and drove away at speed. Unfortunately, he noticed that some of the men who had been coming towards him had also apparently jumped into a car and were coming after him.

After a short time, the RD realised that the car pursuing him only had one occupant. While this greatly reassured him, he was still concerned about what this pursuer may do to him if he caught him.

After trying to lose the pursuer through the streets of Port Botany for some time, the RD had a clever idea. He decided to simply stop on the side of the road, with the engine running and then sit in his car. He reasoned that if the pursuer decided to get out of his car to come over to the RD’s car, then the RD could wait until the pursuer got quite close and then slam his foot on the accelerator and drive off at speed. In this way, there was a chance he could lose the pursuer once and for all.

The pursuer obviously had not expected this development and was unsure of what to do next. I suspect that the pursuer also did the maths. He probably realised that if there was any trouble it would be a one-on-one contest rather than the more comfortable 30-to-1 odds which he had enjoyed down at the picket lines.

Accordingly, the pursuer decided to drive away, leaving our RD sitting nervously in his car.

After a little while, the RD steadied his nerves and drove home. That was the last time the RD went down to observe the picket lines.

Recriminations and harassment

In the days following the Easter weekend, the recriminations were flying thick and fast between the MUA and the ACCC. John Coombs accused the ACCC of harassing the MUA.

Professor Fels responded to these criticisms by saying[1]:
It was in every paper and TV screen in the country that the MUA were proposing to breach section 45D and DB of the Trade Practices Act and, in those circumstances we had to respond.

We were quite surprised Mr Coombs said we here harassing him. We were reacting to widely publicised comments from him that the MUA would be breaching the Act.

We have been interviewing people from the waterfront over the last couple of months in response to a couple of possible breaches on the waterfront that have come to our notice.

We are on no one’s side in this dispute. We will look at any alleged breach of the Act by anyone on either side, whether on the product market or the labour market side, in an impartial manner.

The fact is that the Parliament has recently passed the law prohibiting secondary boycotts and our duty is to apply the normal techniques of law enforcement in this area.
Coombs’ references to the ACCC “harassing” the MUA may have been a reference to an incident which occurred one night around Easter when I insisted on hand delivering a letter to the MUA’s national office.

I was with two AGS lawyers one night after we had prepared yet another warning letter to the MUA about its boycotts. Ordinarily we would have emailed the letter or had it delivered by a process server to the MUA’s Head Office.

On this particular occasion, I announced to the two AGS lawyers that I had decided to personally, hand deliver the ACCC’s letter to the MUA’s Head Office that night. When the lawyers asked me why, I explained that I was sick of the fear and intimidation that we had been forced to accept since the Waterfront Dispute broke out. I said it was not right for the team involved in the Waterfront matter to live in the constant fear of being beaten up just because we were doing our jobs.

I probably added a few more clichés for good measure – for example, if we change the way we live our lives, then the proponents of violence have won and so on. I have never been terribly slow at climbing up on my high horse.

The two AGS lawyers looked at me quite nervously. I think the question on both of their minds was “Do we have to come with you?” So much for stirring them both up into an idealistic fervour with my fighting words!

I remember turning to one of the lawyers and saying “You don’t have to come with me if you don’t want to. I know you have a young family.” I had said this as a joke to try to relieve the tension which my announcement had created. However, the lawyer that I had directed my comment to, just looked at me and said, “Thanks Mike” and left.

I must say this lawyer’s decision to leave made me realise the stupidity of my plan. However, despite having this realisation, it did not dissuade me.

The other AGS lawyer (who incidentally had a grown-up family) and I started the fairly long trek from the ACCC offices, which at that time were at 175 Castlereagh Street in Sydney, to the MUA’s Head office on Sussex Street.

When we arrived at the MUA’s head office we observed that the front door was locked, and that there was nobody downstairs in the small lobby. However, we noticed that there was an intercom. In addition, all the lights in the offices upstairs were on and it sounded to us like there were a great number of MUA staff upstairs working back late.

I buzzed the intercom and a man answered. I announced that I was Michael Terceiro from the ACCC and that I had a letter which I had to hand deliver to the MUA. The intercom went quiet for a few seconds, before the voice came back and said, “Just slide it under the door”. The AGS lawyer immediately turned to me with a look on his face which said, “Well, we tried.”

However I was determined. I buzzed the intercom again. The voice again answered and I again explained who I was and that I had to deliver the letter personally to an MUA official. This time the voice was much more decisive – he commanded me to slide the letter under the door.

I was quite annoyed by this stage. I buzzed the intercom a third time. This time the voice did not answer. I buzzed a fourth time and again there was no answer.

I must admit I was getting more and more annoyed. I had wanted to prove a point - ie I was not going to live in fear of getting beaten up for just doing my job. But how could I prove my point unless I could actually come face to face with at least one MUA official or employee late at night on their own turf and deliver my letter?

I then remembered that I had the general switchboard number for the MUA in my mobile phone. Accordingly, I took out my mobile and called the MUA’s reception.

Coincidentally, I got through to the same voice that I had been speaking to earlier over the intercom. I again explained to him who I was and that I needed to hand deliver the letter to an MUA official. I probably made it sound like I would get the sack unless I personally delivered this letter to somebody at the MUA, which was clearly not the case.

The voice on the telephone was obviously getting sick and tired of me by this stage. He told me with considerable exasperation that:
  • nobody from the MUA was going to come downstairs to get the letter off me; 
  • he was very busy; and 
  • I should just slide the letter under the door and go away. 
He then hung up.

I was totally miffed by this stage, so I again called the MUA’s switchboard number. I heard someone answer the phone but as soon as they heard my voice, they hung up.

It was at that stage that I finally accepted that no MUA person was going to come downstairs to get the letter off me and that I had no other option but to slide the letter under the door.

Accordingly, I slid the letter under the door (putting the AGS lawyer and my “former” friend out of his misery) and we left.

Despite not actually hand delivering the letter to an MUA official, I found this entire episode quite satisfying. We had not let fear dictate our actions (which is not to say that we were not terrified the entire time when we outside the MUA offices trying to deliver our letter).

It dawned on me later that maybe the MUA had not come downstairs because they had been scared of us. The MUA may have suspected that my request to serve a letter on the MUA late at night, was simply a ruse to try to get them to open the front door, so that 100 SAS Commandos could immediately swarm into their offices and beat them all up. Maybe fear did actually triumph that day.

Legal actions

During the Waterfront Dispute, there was a plethora of legal actions. I will not be discussing all of these legal actions in any detail in the Untold Story because they have been dealt with in considerable detail in both Waterfront and the Bastard Boys mini-series. I will only be touching on various aspects of these actions as they relate to the ACCC's investigation and litigation.

The MUA had commenced legal proceedings against Patrick, almost immediately after the sacking, seeking the reinstatement of the MUA workforce. These legal proceedings raised various allegations including claims that Patrick had breached the Corporations Law by effectively stripping assets from its operating companies.

Patrick then commenced its own legal proceedings against the MUA in Australia and against the ITF in London. In Australia, Patrick was seeking damages against the MUA for the effect of the various picket lines on its business. In London, Patrick was seeking various orders to prevent the ITF from facilitating a global boycott.

The MUA subsequently commenced further legal proceedings against Patrick, Corrigan and Peter Reith alleging that they had been involved in a conspiracy to sack the MUA workers.

Corrigan was continually telling the media at the time that he had advice from his lawyers that all of the actions he had taken to get rid of his MUA workforce were “completely lawful”.

We at the ACCC wanted to know whether Corrigan’s views about the sacking were legally correct. After speaking to our own lawyers, we formed an entirely different view to Patrick on the legality of its actions. Our view was that Patrick’s actions in sacking its entire MUA workforce were almost certainly unlawful. We also believed that the MUA would ultimately be successful in its primary case – namely, that the sacking of the MUA workers had been illegal and that they should be reinstated.

We also formed the strong view that the MUA must have known that their prospects of winning their case for the reinstatement was very strong.

This raises the obvious question:
Why did the MUA decide to engage in blatant breaches of the TPA, and to ignore numerous warnings from the ACCC about their conduct, if they must have known that ultimately they were going to win their case?
I believe that the reason the MUA decided to engage in unlawful picket activity, despite knowing that they would win their case, was because they did not want to take the chance that the MUA would be shown up as lazy and incompetent by the non-union labour. In other words, the MUA feared that if the non-union workers were able to work unimpeded, that they may be able to achieve higher container lift rates than the MUA. No doubt if this had happened, Corrigan and Reith would have both used this information to argue that the MUA had been out performed by a bunch of half-trained farmers.

I think it was one of the MUA’s greatest propaganda successes to convince the various unions and other people who supported them during the dispute that the MUA needed to engage in boycott activity because the outcome of their legal proceedings was uncertain. The MUA never had any doubts that they would win their case for reinstatement. Indeed, they won their case quite convincingly at every stage in the court process – ie at first instance, on appeal to the Full Federal Court and finally on appeal to the High Court.

I also have my doubts that Corrigan ever actually believed that his extreme strategy of sacking his entire MUA workforce was going to work. While I am sure that Corrigan hoped that he would be successful in getting rid of his MUA workforce, he always knew that this was going to be a highly unlikely outcome. I think Corrigan knew that whatever happened, he was likely to receive a significant handout from the Howard Government to assist him in retrenching many of his MUA workers. That is exactly what happened – the stevedoring industry was permitted by the Government to impose a levy on containers which was then used to fund MUA redundancies.

Simply put both the MUA and Patrick had highly cynical motives for their actions, although they continually tried to dress up these motives as ideological convictions. Both the MUA and Patrick were also able to win over a great deal of support by parading these false ideological convictions – ie the MUA were successful in "taking in" most of the union movement as well as a great deal of public opinion, while Patrick was successful in "taking in" Peter Reith and the Howard Government.

Both parties presented the case to the media and the general public as the quintessential battle of capital against labour – however, nothing could have been further from the truth. The MUA’s primary goal in the dispute was to maintain its closed shop on the waterfront and to preserve the high wages and excellent working conditions enjoyed by its members. Corrigan’s primary goal was to cut his costs so that he could make lots of money. However, rather than cut costs like most businesses by economising, becoming more efficient and innovating, Corrigan wanted to cut his costs by getting corporate welfare from the Howard Government.

Ironically both the MUA and Patrick came out of the Waterfront Dispute as winners. The main losers from the dispute were the Australian taxpayer, who ended up effectively funding the redundancies, and a large number of Australian businesses which suffered financial damage because of the boycotts. However, more about the winners and losers later in the Untold Story.

[1] “Fels walks the industrial relations tightrope without fear or favour”, The Australian, Monday, 13 April 1998, p. 2.

No comments: