Part 11 – ACCC - MUA face off
MUA Meeting
On 6 May 1998 , I travelled down to Melbourne
I remember sitting on the plane and
asking one of my colleagues what he thought the MUA would want to discuss at
the meeting. He said it was simple, just
read page 4 of The Australian. He
then handed me a copy.[1]
The waterfront
union will today use its partial victory in the High Court to pressure the
Australian Competition and Consumer Commission to abandon plans to prosecute
two senior MUA officials.
MUA and ACCC
lawyers were due to meet at 11am in Melbourne to discuss the watchdog's claims
that John Coombs and Trevor Charles had breached the Trade Practices Act by
aiding the International Transport Workers Federation’s planned boycott
campaign during the height of the waterfront dispute.
The MUA has denied
any illegal involvement with the ITF and its legal team of Val Gosternik and
Kevin Bell will today argue the ACCC should no longer have concerns given this
week's High Court ruling in favour of the union and the expected return to work
by 2000 wharfies sacked by stevedore Patrick last month.
The ACCC will be
represented by lawyers from the Australian Government Solicitors office –
including General Counsel Luke Woodward and Senior Counsel Glen Owbridge– and
special investigator Michael Terceiro, who has headed up the commission's MUA
probe.
An unsworn affidavit
by Mr Terceiro, who spent six months examining union publications and websites
around the world, is part of the ACCC's documentation.
A spokesman for
ACCC chairman Allan Fels declined yesterday to comment on the precise nature of
the talks, but said the ACCC was yet to decide if charges would be laid.
I must admit that I liked the title
of “special investigator” in the newspaper article. I thought that it made me
sound like Kenneth Starr or somebody of similar investigatory stature.
However, I wasn’t quite as keen on the next paragraph which stated that I had
spent “six months examining union publications and websites”. I thought that this
made me sound like a computer geek who just sat in my office all day surfing
the web, rather than a hardcore investigator who was willing to get my hands dirty.
From the beginning of the meeting,
it became apparent to me that this was not going to be a normal ACCC settlement
meeting. Usually when the ACCC has a meeting with a business about a suspected breach of
the TPA, it believes that it is the party which enjoys the moral high ground.
However, I remember at this meeting it was the MUA which was continually
trying to assert the moral high ground, while at the same time being completely
dismissive of the ACCC's concerns. The
MUA’s confidence had been greatly enhanced by its recent win in
the High Court.
A major issue we discussed at the
meeting was whether the MUA would abide by undertakings which they had given to
the Federal Court not to engage in any boycott conduct towards Patrick. We also asked whether these undertakings
would extend to any ships loaded at Webb Dock by the PCS. Unfortunately, we received vague answers to
these specific questions. It became apparent to us that the MUA and its legal
advisers had come to the meeting with the intention of playing games,
rather than to make any genuine effort to resolve our concerns.
The most annoying part of the
meeting was when the representatives of the MUA looked us right in the
eye and said that the MUA had nothing to do with the ITF’s threatened global
boycotts. We knew at the time that this was simply false.
Regardless of the MUA’s games, it
was apparent to me that the MUA were very concerned about the ACCC taking legal
action against them. Indeed, the MUA appeared to be quite desperate to stop that happening.
The
MUA’s main concern appeared to be that if the ACCC took legal action against
them, that this may turn public opinion against their cause. At that time, the ACCC had a good reputation
as an independent and fearless regulator, which no doubt gave added weight to its concerns about the MUA's conduct. I also think that the fact that the ACCC had
not commenced legal proceedings immediately after the sacking convinced many
people that the ACCC was not operating at the direction of the Howard
Government, but rather was operating independently.
After the meeting, the Waterfront
team was scheduled to return to Sydney
I turned to my AGS colleague and
told him of my plan. He looked very
nervous about the idea of going to Webb Dock. He had been my unfortunate
companion on the earlier visit to the MUA head office, so it was fair to say that
he didn’t trust me very much. I
assured him that we were only going to have a look and that I doubted we would
be able to get very close to Webb Dock because of the picket lines.
I flagged down a taxi and told the
taxi driver we wanted to go to Webb Dock. He looked at me in terror and said,
“You want to go to Webb Dock?” I confirmed
that that was where we wanted to go.
Despite the fact that he clearly did not want to accept the fare, he
headed off to our destination with little enthusiasm.
We headed off to Webb Dock. I was sitting in the front seat of the taxi and the AGS lawyer was in the back. After driving for some time, we arrived at
the port precinct. I was very surprised to see that the whole area looked
abandoned – there were no people anywhere.
We arrived at what appeared to be
the Webb Dock gate and then proceeded to drive through it. We then drove down
to the actual dock area where there were a few containers and a large number of
motor vehicles. It dawned on me that we
had somehow driven behind the picket lines. But, where was the picket line?
The taxi driver then turned the taxi around and started driving back to the gate.
As we were driving back, the then CEO of the ACCC called me on my mobile
phone to find out how our meeting with the MUA had gone. Just as he started talking to me, a few
hundred picketers appeared at gate between where we were and where we wanted to
go. It seemed that the picket line had left the gate for a short time which,
coincidentally, had also been the precise moment that we had driven through the
gate.
Now the picket line was back and
looking very angry at the two guys in suits who had somehow gotten behind the
picket line. I suspect they were actually angry with themselves for having somehow
let us through the picket line without their knowledge.
As we drove towards the picket
line, the picketers formed a human barrier in front of us.
The CEO, who was still on the phone to me, realised something was up by
the fact I had gone silent mid-sentence. He asked me what was wrong. I told him
that we had inadvertently driven behind the picket line and that we now had a
few hundred picketers in front of us who were looking at us with extreme
malice. I said to the CEO that I thought we were going to be beaten up.
At that moment, the poor
unfortunate tax driver asked me what he should do. I gave him the following instructions without
even thinking – slow down, keep driving, and whatever you do, don’t stop. I
thought that if we slowed down to about 5 kms an hour and continued on our path, that the picket line may part and let us through. I added one further important instruction to the taxi driver - “Make sure you don’t hit anyone”.
As we came close to the picket
line, I remember seeing all the picketers looking at me and then looking at
each other. I knew that it would only take one person to do something and the
rest would follow suit. For example, if someone had decided to stand in front
to the taxi and not move, I am sure that other picketers would have done the
same. Alternatively, if someone had tried to drag us out of the taxi, I knew
that the entire mob would have joined in.
Fortunately, in that very long 1 minute as we drove towards the picket
line, nobody on the picket line could decide what to do.
When we got to the front of the picket
line, it started to part slowly. We started driving through. The picket line continued to part. I knew that at any second everything could
change. It would take just one member of the picket line to do something and
the rest would follow – luckily for us, that didn’t happen. The picket line continued to part until we
had made it to the other side. Once we made it through the picket line, we drove
away, with considerable relief.
I remember looking back over my shoulder at the picket line. The members of the picket
line were all staring at us with a look of disbelief on their faces. I think that they were quickly coming to the
realisation that they should have done something rather than just let us breach
their picket line twice.
When we had driven for a short
time, the AGS lawyer asked me whether I had had a Plan B just in case my Plan A
had not worked. I replied, “Of course I
had a Plan B. If the picket line had stopped us, I was going to push you out of
the taxi and tell them to play with you for a while”. While the AGS lawyer laughed, it seemed to me
that he was, like me, still quite shaken by the whole experience.
When we arrived back at the CBD, I
asked the taxi driver what the fare was. He looked down at his meter and said
in a sheepish way that he had forgotten to turn on his meter. The taxi driver had
been so scared at the prospect of going to Webb Dock that he had forgotten to turn
on his meter! That event alone probably demonstrates quite well just how
dangerous the atmosphere at the waterfront was at the time.
I asked the taxi driver how much he
thought the fare would be had he remembered to put his meter on. He told me an amount. I gave him the fare plus a very healthy tip,
which I thought might make up in some small way for the terror I had just put
him through.
Provocation
In the first couple of weeks of May
1998, there was a distinct possibility that the ACCC may not in fact end up taking legal action against the MUA. Given the High Court’s decision that Patrick
could only hire its former MUA workers, there seemed to be no sensible reason
for the MUA and the ITF to maintain their threatened boycotts. Indeed, on 5 May 1998 , the first MUA workers
returned to work, admittedly on an unpaid basis, to clear the backlog of
containers.[2] If the boycotts had stopped at that time, the ACCC could have just walked away.
Given these events, one has to ask
why the ACCC ended up taking legal action against the MUA?
The simple explanation was extreme
provocation. Despite winning their case in the High Court, the MUA continued to
incite global boycotts of Australian shipping. The MUA did this in reprisal
against the parties who had dared to use non-MUA labour during the
dispute. The MUA continued engaging in
such conduct in the face of many clear warnings from the ACCC that they must desist.
While the MUA’s earlier illegal
boycott conduct could be excused to some extent because of Patrick’s extremely
provocative actions, this current boycott activity could not be defended in the
same way. To continue inciting boycotts of ships which had been stevedored with non-union labour
in the then current circumstances was industrial thuggery, pure and simple.
At the ACCC, we saw the news
reports that the global boycotts would remain in force until there was a
“definitive end” to the waterfront dispute.[3]
What this meant was that the MUA and its overseas affiliates would continue their illegal boycotts until all the MUA workers were given their
jobs back. As stated earlier, the MUA
decided on this course of action despite the High Court’s decision that the
administrator of the Patrick labour hire companies was the one who had the
legal right to decide how many workers went back.
In mid-May 1998, the International
Longshore and Warehouse Union (ILWU) picketed the Columbus Canada at Longbeach ,
California Australia
David Cockcroft, the then head of
the International Transport Workers Federations (ITF) was quoted as saying:
I imagine the bans
on the Columbus Canada San Francisco Seattle Vancouver
When the media asked John Coombs
about this incident, he quite innocently said that he was unaware of what had
happened.
The ITF also started playing games
with the ACCC. The ITF was aware that
the ACCC had asked the MUA to withdraw any requests which it had made to the
ITF and ITF affiliates to boycott ships which had been loaded or unloaded by
non-MUA labour.
The ITF subsequently put messages
on its website addressed to all of its affiliates in which they told these affiliates
to ignore any requests from the MUA to cease boycott action.[5] We
found it somewhat strange that the ITF would have published such a message on
its website if the MUA had not in fact asked the ITF and other unions to engage
in the illegal boycott conduct in the first place.
The MUA’s apparently bloody-minded
attitude to getting all its workers re-employed was just a ruse. What it really
wanted to achieve were generous redundancy payments, entirely funded by the
Howard Government, for any excess Patrick MUA workers who the administrator did not re-employ. The MUA believed that it
would have greater leverage in achieving this outcome if the boycott activity
against international shipping was continuing.
The MUA’s irresponsible and
reckless approach to the global boycotts put it on an inevitable collision
course with the ACCC.
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