ACTU defiant
Towards the end of April 1998, Judge
Barry Beach of the Victorian Supreme Court granted Patrick a range of
injunctions preventing the continuation of the boycotts at its Melbourne
container facilities.
There was little doubt when these injunctions were made that they were probably too broad to be enforceable. Effectively,
Justice Beach ordered that no protestors were to come within 200 metres of East
Swanson and Webb Docks. The injunctions applied
to “anybody” protesting at Patrick’s facilities - they were not limited to either
MUA members or even to an identifiable group of individuals. Furthermore, the
protestors were not allowed to take photos of people behind the picket lines,
which obviously caused considerable problems for the media.
There was a strong expectation that
Justice Beach’s injunctions would be overturned on appeal. However, that would
take time. It also became apparent to us that the MUA could not afford to call
off the boycotts because that would have given the non-union workers an
opportunity to get on the wharfs to show what they could do. Accordingly, the
MUA simply decided to ignore the injunctions.
In a remarkably irresponsible act,
the ACTU and its main spokesperson in relation to the Waterfront dispute, Mr Greg
Combet announced publicly that the ACTU would also defy Justice Beach’s
orders and continue with the boycotts in Melbourne. The ACTU encouraged its union membership to do
the same and defy Justice Beach’s injunctions.
In a further act of industrial
irresponsibility the ACTU publicly gave formal approval to national
industrial action in support of the MUA.[1]
The ACTU and Combet did not seem to
care that by blatantly ignoring the Court’s orders, and encouraging others to
do the same, they were committing a clear and very serious contempt of court.
The actions of the ACTU and Combet
marked a significant deterioration in the dispute. The ACCC had understood up until that time
that the parties to the dispute would obey court orders. Even though most of the parties
appeared to be ignoring almost every law which applied to them, such as the TPA,
the Workplace Relations Act and the Corporations Law, we all believed that the
parties would draw the line at ignoring court orders. However, the statements and actions of the
MUA, the ACTU and Combet in relation to Justice Beach’s orders signalled to us that
even court orders were going to be ignored by the parties if they did not like
the consequences of complying with those orders.
I think it is fair to say that the
rule of law had been well and truly abandoned by this stage in the dispute. Unfortunately, worse was to come!
ICFTU acts legally
One should compare the actions of
the ACTU, in publicly stating that it was going to engage in contempt of court,
to the actions of its international counterpart, the International
Confederation of Free Trade Unions (ICFTU).
By way of background, the ICFTU is
an international confederation of trade unions based in Belgium. At the time it represented 206 different
local unions around the world, with approximately 125 million members.
The ICFTU announced in late April
1998 that it had written to the Prime Minister Mr Howard to advise him that it
would be organising a range of union actions in support of the MUA.[2]
However, in contrast to the actions of the ACTU, the ICFTU was not proposing to
engage in, or seek to facilitate, illegal boycotts. Rather the ICFTU announced
that it was proposing to engage in a series of entirely lawful actions to place
pressure on the Howard Government and Patrick to try to facilitate a resolution
of the dispute.
For example, the ICFTU announced
that it was proposing to mount a legal challenge against the Australian
Government through the International Labour Organisation for alleged breaches
of the freedom of association laws. It also said that it would be contacting
institutional investors in Patrick and its parent company Lang Corporation to
try to get these institutional investors to put pressure on the companies to
change their approach to dealing with the MUA.
At the time, I was very impressed
at the way the ICFTU had decided to approach the issues. It had decided to
focus its efforts on legal means of pressuring Patrick and the Howard
Government to fix the dispute rather than to promote illegal conduct, including
engaging in conduct which would constitute a contempt of court. It was
unfortunate that both the MUA and ACTU did not decide to adopt a similar
approach to the ICFTU. Indeed, the approaches
which the ICFTU decided to take were clearly available to the ACTU.
Criticisms of ACCC
At this time, the ACCC was being
criticised relentlessly by the then Labor opposition. Professor Fels was being
criticised by a number of Labour politicians for even threatening to take legal
action against the MUA. The main critics of Professor Fels were Kim Beasley,
the then leader of the Opposition and Lindsay Tanner, who was at that time the
Shadow Minister for Transport. The
general line which the Labor Party took in its criticism of Professor Fels was that
he was being partisan in threatening to pursue the MUA and not Patrick and
other businesses involved in the Waterfront.
In actual fact, the Labor opposition
was trying to pressure the ACCC into not intervening at all. Ironically, I am fairly confident that the
Labor opposition would have been up in arms if they had obtained any evidence
that the Howard Government had been trying to pressure the ACCC into intervening in
the dispute against the MUA.
In early May 1998, Professor Fels
decided to get on the front foot in explaining the ACCC’s approach to the
dispute. In a lengthy article in The Age
entitled “Watchdog and the Waterfront”, Professor Fels made the following
comments:[3]
What is the role
of the Australian Competition and Consumer Commission in the waterfront
dispute? Is it taking sides? No. It is just doing the job the Federal
Government gave it to do…
The Parliament
made the commission responsible for upholding the law. It also decreed that the
commission must act impartially, independently and without fear or favour.
The employers –
Patrick, PCS and P&O – and the Maritime Union
of Australia
The commission is
not taking sides. Its role is simply to ensure that no one breaks the law. If
it turned a blind eye to breaches of the law (as some suggest would be
appropriate in this case), its hard won credibility and integrity across the
board would suffer.
The commission’s
job is to ensure there are no breaches of the law by anyone – although,
interestingly, it is nearly always portrayed by affected parties as taking
sides when it intervenes in the public interest and this case has been no
exception.
The commission has
tried to be even-handed when applying the law.
It is
investigating: the lease arrangements between Patrick and the National Farmers
Federation owned by PCS Stevedoring at Webb Dock; possible anti-competitive
arrangements which came to light in the OOCL litigation (an investigation that
has accelerated now that Supreme Court documents are available); and
allegations of (a) “no-poaching of customers” agreement during the dispute
between Patrick and P&O.
These
investigations have received less publicity than the labour-market
investigations partly because the MUA (acting within its rights) has released most
of the correspondence about itself, whereas the businesses involved have not.
On the labour
market side, the commission has been investigating: alleged MUA collusion in
international boycotts of Australian goods and services; alleged refusal by
tugboat employees to cooperate in the berthing of ships at Patrick terminals;
alleged MUA boycotts in relation to hold–cleaning practices; and the general
picketing activities, insofar as they go beyond being peaceful (although there
are already injunctions and other orders imposed by courts under other laws in
relation to these).
The commission has
been concerned to play a difficult situation with a straight bat.
It is following
standard and proper processes, despite allegations by the MUA of commission
harassment. It is customary, when it learns of behaviour that would breach the
Trade Practices Act, to warn participants in the hope of stopping the
behaviour.
The MUA announced
on television, radio and newspapers that efforts would be made to block the
loading and unloading of ships at Patrick terminals. The commission sent the
MUA a standard warning letter and telephoned the MUA secretary to tell him that
the letter had been sent.
It is regrettable
that the effect of the MUA comments is simply to discredit an independent
agency doing its job properly.
Should the
commission exercise its discretion to apply the law leniently because unions
are involved? There are no signs the Parliament intended this. If anyone thinks
the law is undesirable, they should get it changed by Parliament rather than
expect the regulator to nullify it.
In any case when
prospective breaches are announced with maximum publicity, the commission has
little choice but to act….
In conclusion,
difficult and emotional though the dispute may be, the commission is a public
institution which can only maintain integrity and respect if it is seen to be
fearlessly objective in pursuing its statutory responsibilities.
In that process,
it is almost inevitable that parties whom the commission seeks to regulate will
be aggrieved and angry. Unfortunately, for the commission, this is a fact of
life it must face in fulfilling its functions.
Professor Fels made it quite clear
that the ACCC would be doing its job properly and that we would not be
influenced into taking action by either side in the dispute. We assessed all
the complaints we received in the usual way, always being careful to maintain
our independence. We never decided to pursue any complaint at the request of any external parties. Every investigation had to meet the ACCC's usual enforcement priorities before we decided to commence an investigation.
The reference in Professor Fels’
article to "the various parties who wanted the ACCC to turn a blind eye to breaches
of the TPA" was a clear reference to both the ACTU and Labor opposition.
As stated by Professor Fels, the
ACCC had decided to commence a number of business-side investigations because
it wanted to be balanced in its approach during the Waterfront Dispute. By
investigating both the unions and businesses, the ACCC hoped that nobody could accuse
it of being partisan. Unfortunately,
this was not what happened. All the ACCC achieved by commencing investigations into players on both sides to the dispute was to give them both the ammunition to argue that
the ACCC was being partisan against them.
While I didn’t mind conducting these
business-side investigations, it seemed to me to be a bit strange that our
small team had to devote its meagre resources to investigating these less obvious
alleged breaches of the TPA, at a time when the MUA was engaging in blatant
breaches of the TPA and taunting the ACCC about its illegal conduct. I
thought there would be plenty of time to go after anybody else in the industry that
was breaching the TPA once we had commenced legal proceedings against the MUA.
I was also very frustrated that the
ACCC was giving the MUA so many warnings - indeed, more warnings than they deserved. Contrary to what Professor Fels said in his article, it was not standard ACCC operating procedure to give a warning to a party which the ACCC believed was contravening the TPA. Rather, the ACCC would usually seek an explanation from the party about its conduct and ask the party to stop engaging in that conduct. If the business did not provide an adequate explanation and also did not agree to stop their conduct, the ACCC would generally be seeking to immediately commence legal proceedings against that party.
High Court victory for MUA
On 4 May 1998, the High Court
handed down its decision in relation to Corrigan’s appeal against the order that
he reinstate his MUA workers. The ACCC
had decided to await the outcome of the High Court decision before deciding whether
to commence legal action against the MUA.
In a 6-1 decision (Justice Callinan
dissenting) the High Court upheld the injunction forcing Corrigan to reinstate
his MUA workers. It initially appeared to everyone that the MUA had won a comprehensive
legal victory and the sacked workers would soon be getting their jobs back.
However, soon after the decision, it
became apparent that the High Court had not ruled entirely in the MUA’s favour.
While the High Court affirmed Justice North’s orders requiring Patrick to
rehire the sacked MUA workers, it also decided to vary Justice North’s orders.
The High Court varied the orders to grant the
administrators of the Patrick labour hire companies discretion as to whether
they would rehire all of the sacked MUA workers, or only some of the workers. In other words, whilst the
Patrick labour hire companies could only hire the former MUA workers, the
administrators in charge of those businesses could decide whether to rehire
only part of the sacked MUA workforce if this would improve the financial
viability of these companies.
As stated by the majority:
It is one thing to
restrain Patrick operations from giving effect to the termination of the labour
supply contracts…It is a very different thing to fetter the discretion of the
administrators. There was an appealable error (in Justice North’s initial
orders) which can be rectified by the insertion of an appropriate
qualification.
Coombs and the MUA were very unhappy
with the High Court’s decision. Coombs was
immediately quoted in the media as saying:
I’m not interested
in getting one-third or two-thirds or three-quarters of them back. They’ll all
be going back or none of them will be going back.[4]
We are not going
back on their terms, and if we have to stay out a bit longer to get back on our
terms, we will stay out a bit longer.[5]
In other words, the MUA did not
care that the High Court had made a decision concerning the legal position of the
parties to the dispute. Even though High Court had provided clear guidance on how
the dispute may be resolved, the MUA was determined to ignore this direction
and to continue engaging in the illegal boycott conduct until they got exactly what they wanted.
The MUA’s pronouncements that it
would effectively ignore the High Court’s ruling was probably the lowest point
in the dispute in terms of the parties showing a blatant disregard of the rule
of law. If the parties were willing to
ignore the highest court in the land then there was little hope of the courts providing a legal
resolution.
We were also concerned that if the MUA
and the ACTU could be so blasé about the consequences of ignoring the court’s rulings,
including the High Court’s ruling, there would be nothing to stop both Patrick’s
and the Howard Government from ignoring any court rulings that they did not
like.
[1] “Unions
Defy Court Ban”, Australian, 21
April 1998 , p. 1.
[2] See
“Global unionists threaten Australia 23 April
1998 .
[3]
“Watchdog and the waterfront”, The Age, 4 may 1998, p. 132
[4]
“Checkmate: Wharfies rejoice but it’s a move too soon”, Daily Telegraph, 5 May 1998 , p. 1.
[5] “Any
settlement will come on the wharves and not in the courts”, SMH, 5 May 1998 , p. 7.
Posts
0 comments:
Post a Comment