Saturday, 10 December 2011

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 9 - Things get uglier

Part 9 - Things get uglier

Kids on the pickets

Undoubtedly, the most shocking image of the entire Waterfront Dispute was the appearance of terrified children on the picket lines. On the Tuesday after the Easter Weekend a number of children were brought to Port Botany by their parents. When police started trying to remove these children, the children became very upset and started screaming and crying. The media was there to capture the children’s distress and the story featured heavily on television news broadcasts over the next few days. Indeed, this footage became one of the defining images of the whole dispute.

But what was the response of both sides of the dispute to this upsetting event?

Both sides of the dispute immediately tried to turn these terrible events to their own political and media advantage.

Peter Collins, the former NSW Liberal opposition leader, immediately branded the use of children as a “deliberate stunt by union organisers to use children to gain sympathy for their cause”.[1] He added:
…people certainly don’t like seeing children used as human shields in an inflamed industrial theatre, as they were on Tuesday. Using children in this fashion is abhorrent, inexcusable and unacceptable by any standard.
Vic Slater, the Assistant National Secretary of the MUA responded with one of the most ludicrous statements of the whole dispute[2]:
Let’s hope that the hypocrisy of politicians complaining about wharfies allegedly using children on the hustings is not entirely lost on the public. No doubt our Federal MP’s kissing babies for photo opportunities in the lead-up to the next election will become daily fare in the media.
How Vic Slater could seriously compare MP’s kissing babies to young children being forcibly removed from violent picket lines in tears is beyond me.

Slater went on to claim that the person who brought the children to the “peaceful assembly” was not a member of the MUA. He added that the person had only brought his kids because he could not organise suitable child care. He made the following promise[3]:
And it won’t happen again. The Port Botany picket has set up it’s “mobile crèche” away from the picket – like those already operating in Fremantle, Melbourne and Brisbane. People donated toys and food for children.
I will quote the rest of Slater’s article because it has always shocked me at its cynicism in trying to turn a terrible event into a public relations win for the MUA[4]:
Wives and children, however, do have the right to be with their families in times of crisis. Their husbands and fathers have lost their jobs. Who will feed them? Who will pay the mortgage so they are not booted out of their homes? Who will pay the child-care fees, now they are out of a job?

The ACTU, other unions and other MUA members are doing all they can, but the myth of Australian’s “feeling comfortable and safe” under the Howard government is gone forever. Union bashing is not a family value.

The media are well aware of this. They have been phoning us each day asking to interview families about their plight. And it is the media which had requested our members get families behind officials during television broadcasts.

Workplace Relations Minister Peter Reith claims “the picket line is no place for children”. No doubt he believes women should stay in the kitchen and children should be seen and not heard.

The truth is that wives and children are even more affected by this dispute and the men who have lost jobs. And they have a right to be there as a family and have their say.

What's more, this is Easter. It is not only a time when families are traditionally together, it is a time when schools and preschools are on holidays. Childcare is even more difficult to arrange, especially given this government has cut $800 million from the children's services budgets – putting centre–based care, family day–care, pre–school, after–hours programs, occasional and respite care out of the reach of the majority of Australians.

This dispute, which Mr Reid has manufactured, affects all family members, not just MUA members.

It may be difficult for readers to grapple with the reality that these 2000 wharfies that Patrick has effectively sacked are human beings with mothers and fathers and wives and children of their own – not the faceless demons painted by the government. They are people. What's more, they are people with a long tradition of sticking together and working as a community.
And they are not just fighting for their jobs, their fighting for their children's futures. It is only natural that such a time their children want to be near them.
I think the debate between Collins and Slater provides a stark illustration of the moral bankruptcy of both sides. Neither side truly cared about those kids in the middle of the picket line, nor about any of the other people who were injured and victimised during the dispute. Every person involved in the dispute at the grass roots level were seen by the MUA, ACTU, Patrick and the Howard Government as little more than props to be moved around in front of the media to try to win over popular support.

International action

In mid April 1998, it became apparent that the MUA’s efforts in gaining international support for its cause was starting to be successful.

As reported in the media at the time, the American Federation of Labor and Congress of Industrial Organisations (AFL-CIO) asked its 17 million members to boycott Australian farm products.[5]

This was followed by an announcement by the International Longshore and Warehouse Union (ILWU) that it was calling on all union members to stop buying Australian beef and produce. The ILWU president, Brian McWilliams, was reported as saying:
The ILWU sees this attempt to break the Maritime Union of Australia as part of a larger global strategy by international shipping and stevedoring companies and various conservative national governments to bust dock worker unions around the world. We will not stand for this kind of activity.[6]
These announcements caused a great deal of concern in Australia.

However, these proposed boycotts of farm produce did not seem to make a great deal of sense in the context of the Australian dispute, as only a few ships had been loaded using non-union labour. The ILWU’s explanation for the boycott was:
The National Farmers Federation is one of the main instigators of this attack on the MUA so we will begin by targeting it.[7]
The ILWU also hinted that it was proposing to black ban any ships which had been loaded or unloaded by Patrick Stevedores. In this regard, McWilliams was quoted as saying:
It will be several more days before any ships using Patrick’s scab docks can make it to our shores and time is of the essence.[8]
After these threats were made, Professor Fels weighed into the debate in a significant way. He announced that the ACCC, through its lawyers, had sent a letter to the MUA the previous Friday, 17 April 1998, warning them about their conduct in seeking to facilitate a global boycott.

In the letter, the ACCC demanded that the MUA:
  • cease aiding, abetting, counselling, procuring or conspiring with the ITF to facilitate a global boycott; 
  •  advise the IFT not to threaten or implement any boycott of Australian shipping; and
  • refuse to provide the ITF or any other overseas affiliates with information about any ships which had used non-union stevedoring services in Australia.[9]
The ACCC also demanded that the MUA maintain all relevant records relating to the matter, including emails and any other computer records. The ACCC warned the MUA that if it did not preserve these documents it could subsequently face contempt of court proceedings:
Destruction of such material in anticipation of the obligation to produce documents in discovery is contempt of court.[10]
The letter ended with the threat that the ACCC reserved the right to commence legal proceeding against the MUA without further notice.

The ACCC demanded a response by 10am on Monday, 20 April 1998.

The MUA’s response was swift and direct. Coombs was reported as saying in response to the ACCC letter:
Our lawyers laughed (when they saw the ACCC’s letter), they thought it was a joke.[11]
Vic Slater was also quoted as saying that it was “unlikely” that the MUA would respond by the ACCC’s deadline as the ACCC was “well down on our list of priorities at the moment”.[12]

The MUA did provide some more sensible reasons for their decision not to provide the undertaking. For example they subsequently claimed to the ACCC that they did not need to ask the ITF to take action as the ITF could see what was going on in Australia and could decide to take its own action unilaterally.

However, Fels had a response to this claim:
The ITF constitution requires it to take boycott action only when recommended by its local affiliate and there is other evidence implicating the MUA in the boycotts.[13]
Professor Fels concluded by saying that:
The commission is at the point where it would have little choice but to seriously consider legal action against the MUA.[14]
However, the MUA had some justification for feeling cocky about the ACCC’s legal threats. This was because of the recent outcome in separate legal proceedings commenced by Patrick in London against the ITF.

Shortly after the dispute started Corrigan commenced legal proceedings in London seeking injunctions to prevent the ITF from facilitating a global boycott of ships stevedored using Patrick non-union labour. Corrigan had been successful in the first instance in obtaining an interim injunction.

However, the British High Court had later decided not to continue the injunction. In his judgement, Justice Thomas said: [15]
This court is being asked to use its injunctive powers on an interlocutory basis in connection with an industrial and political dispute in a another sovereign state by requiring the ITF in this jurisdiction and throughout the world not to induce its affiliates to take industrial action that is accepted can be lawful in other sovereign states. It may well be that such action in relation to this political and industrial dispute in Australia might be entirely in accordance with the law as well as the social and political views prevalent in that state, though contrary to the law currently applicable in Australia and the policies being pursued by the Government of Australia.

It is clear that the granting of the injunction would severely impair the ability of the ITF to lend support to the MUA in a bitter and political industrial dispute in Australia. The ITF's support appears on the evidence before me to be of vital significance given the history of their support in relation to what happened at Cairns, Dubai and with PCS at Webb dock. To deny that support at the commencement of an industrial and political dispute would be even more detrimental; as Lord Diplock said in NWL v Woods [1979] ICR at p 879
"it is in the nature of industrial action that it can be promoted effectively only so long as it is possible to strike whilst the iron is hot; once postponed it is unlikely that the action can be revived.
The ACCC had never contemplated trying to take legal proceedings against the ITF in another country to prevent it from inducing other unions to engage in boycotts in support of the MUA. Rather, our focus had always been on trying to take legal proceedings against the MUA in Australia for inducing the ITF and any foreign unions from engaging in boycotts against Australian shipping.

MUA's response to the ACCC

The MUA’s lawyers had written to the ACCC to ask for more time to respond to the ACCC's legal threats. They had also foreshadowed that the MUA would be denying the allegations of facilitating the global boycott.[16] The ACCC agreed to extend the MUA’s deadline to provide the undertakings after these requests from the MUA’s lawyers.

While the MUA’s lawyers were politely asking for more time to respond to the ACCC’s allegations, Coombs was taking an entirely different approach. He went on ABC radio to make the following colourful comments:
The man’s (Professor Fels) got an ego bigger than Ayers Rock and harassing me with faxes and threats, you know, if he’s got evidence of something, why doesn’t he do something about it.

I don’t know how they (ACCC) expect me to call off international boycotts. Whatever these affiliates of the ITF do is their business.[17]
By the end of April 1998, the ACCC had prepared a very strong case against both the MUA and a number of MUA and ITF officials. The ACCC could have commenced legal proceedings at the end of April 1998. Indeed, the Waterfront Team and many of the ACCC’s senior management wanted to commence legal proceedings at that time. However, everybody appreciated that it was a very significant decision to commence legal proceedings against the MUA.

Professor Fels and the Commissioners decided to wait until the result in the MUA’s legal proceedings against Patrick were known before making a call about whether to commence our own legal proceedings. As stated above, the MUA had won an injunction before Justice North of the Federal Court requiring Patrick to reinstate its MUA workers. Corrigan had immediately appealed North’s decision to the Full Federal Court and won a stay of North’s reinstatement injunction pending a final decision from the Full Federal Court.

On 23 April 1998, the Full Federal Court dismissed Corrigan’s appeal against North’s order and reaffirmed the order requiring Patrick to reinstate its MUA workers. As reported at the time, this was a “stunning blow” for Corrigan and the Howard Government.[18] Corrigan immediately appealed to the High Court of Australia and again sought a stay on the order to reinstate his workers. Justice Hayne of the High Court granted Corrigan a stay of the injunction pending a final hearing of his appeal by the High Court of Australia.

[1] “Children in the front line”, The Sydney Morning Herald, 16 April 1998, p.17.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5]US dock bans hit”, The Sunday Age, 19 April, 1998, p. 1.
[6] “US unions call boycott”, Sunday Herald Sun, 19 April 1998, p. 6.
[7] Ibid.
[8] Ibid.
[9] “Fels threatens Coombs over foreign action”, Australian, 20 April 1998, p. 2.
[10] Ibid.
[11] “ACCC weights in on docks war”, Financial Review, 20 April 1998, p.4.
[12] “Fels threatens Coombs over foreign action”, op. cit., p. 2.
[13] “ACCC weights in on docks war”, op. cit., p. 4.
[14] “Fels threatens Coombs over foreign action”, op. cit., p. 2.
[15] Patrick Stevedores Operations Pty Ltd v International Transport Workers, 21 April 1998 at - NB: this appears to be an unfinished draft of the final judgement by Justice Thomas. Strange that such a document should be publicly available.
[16] “Fels holds back for another day”, Financial Review, 21 April 1998, p. 4.
[17] “Stevedore ‘deal’ under investigation”, Australian, 23 April 1998, p. 4.
[18] “Stunning blow to Government”, The Canberra Times, 24 April 1998.

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