Sunday, 18 December 2011

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


Part 11 – ACCC - MUA face off

MUA Meeting
On 6 May 1998, I travelled down to Melbourne with my colleagues from the Waterfront team for our first face to face meeting with the MUA.  The MUA had called for the meeting so that they could explain their position in relation to the boycotts, in particular the global boycotts which had been threatened by ITF affiliates.

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. However, before returning I wanted to go to have a look at Webb Dock.  At this time, there was still a large picket line at Webb Dock and the mood of the picket line was very aggressive. 

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 because it had been loaded in Australia using non-MUA labour.

David Cockcroft, the then head of the International Transport Workers Federations (ITF) was quoted as saying:

I imagine the bans on the Columbus Canada won’t end at Longbeach. This ship is likely to get a similar reception when it goes to San Francisco, Seattle and Vancouver.[4]

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.



[1] “MUA bid to tame watchdog”, The Australian, 6 May 2011, p. 4.
[2] “Wharfies back on the job for free”, Australian, 6 May 1998, p. 1.
[3] Ibid.
[4] ‘Another for ships face US dock ban”, Australian, 12 may 1998, p. 6.
[5] “ACCC may sue on port delays”, Lloyds List, 18 May 1998, p. 132.

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