Thursday, 1 March 2012

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


Part 15:  The Litigation Continues

Introduction
We were very happy with ourselves for having obtained the interim injunctions against the MUA in relation to the international boycotts and also to have commenced our second set of legal proceedings against the MUA. 

However, we were quite perplexed as to how Justice North had been allocated to be the judge in relation to these second proceedings. Given that we had commenced the legal proceedings in Sydney, against a Sydney based organisation in relation to alleged illegal conduct which was occurring in Newcastle and Adelaide, it seemed strange to us that we had been allocated a Melbourne based judge.

Continuing the injunctions
Our first aim after securing our temporary injunctions was to try to obtain further evidence to justify the continuation of the injunctions against the MUA. As stated in the last post, we had obtained injunctions up until 4 June 1998. Therefore, if we wanted to extend those injunctions, we had to obtain further evidence which showed a continuing threat from ITF affiliated unions to vessels loaded in Australia by non-union labour.

The process we undertook to obtain this evidence was to call up the owners of the 23 targeted vessels to find out whether there was any risk that their vessels may not be unloaded on arrival at an overseas port.  The evidence we were looking for was a communication from an overseas ITF affiliated union to the ship owner advising them that their vessel would not be permitted to either berth or unload when it arrived at a particular overseas port.

We also tried to obtain evidence from these ship owners about the loss or damage which may result if their vessel was not permitted to berth or unload.  This loss or damage would usually arise from either the shipping company incurring addition costs due to delays, such as demurrage and time charter costs, or the costs associated with food cargoes going off.

We had mixed success in obtaining this evidence.  Some shipowners were only willing to provide the ACCC with the most rudimentary information. Others did not want to assist the ACCC at all. 

Despite the uneven support received from various shipowners, the ACCC was able to obtain a respectable amount of evidence to support its argument that the injunctions should be continued. 

On 5 June 1998, Justice Bryan Beaumont of the Federal Court accepted the ACCC’s arguments and agreed to continue the interim orders until 11 June 1998. He also ordered that on 11 June 1998, there would be a full interlocutory hearing before Justice North.[1]

We had decided not to pursue further orders against the MUA requiring them to withdraw any calls for assistance to boycott the Canada Columbus or Direct Kea following assurances from the MUA that they had complied with the previous order. 

I must admit I never understood why the full interlocutory hearing was to be heard by Justice North. The orders which the ACCC were seeking related to the ACCC’s initial legal proceedings which was on Justice Beaumont’s docket. Justice North was the judge who was allocated to hear the second set of legal proceedings, which related to the alleged illegal boycott conduct by the MUA in Newcastle and Adelaide.

At the time, it was widely reported that the MUA’s lawyers were keen to have the ACCC’s first case transferred to Justice North’s docket.  The MUA argued that this transfer should occur because the issues raised in the ACCC’s first set of legal proceedings were very similar to the matters which Justice North was already presiding over in the MUA litigation.  However, this submission did not make any sense given that the case which Justice North was presiding over was the MUA’s conspiracy action against Patrick and the Howard Government.

In our view, there was absolutely no similarly between the two cases, in terms of either the relevant legislation or the parties. Even the fact that the MUA was involved in both cases was not really a similarity given that they were the plaintiff in one case and the respondent in the other. 

Before Justice North
We appeared before Justice North on 11 and 12 June 1998 to argue that the interim orders should be continued.  Unfortunately, it became apparent to us almost immediately that it was going to be an uphill battle to extend our interim orders. It was abundantly clear that Justice North was very unsympathetic to our position.

The MUA lawyers argued before Justice North that the MUA had never called on its overseas affiliates to engage in any boycott conduct and that they were not intending to take such action in the future. Despite the fact that this submission was against the weight of the evidence, Justice North appeared to accept it at face value.  Indeed, he did not waste any time telling the ACCC precisely what he thought of our case:

If there is no present danger of the (MUA) doing what the regulator fears, then it’s an inevitable conclusion that the ACCC is pursuing an application that has no real practical purpose.  And that could be described as a waste of public money. [2]

Indeed, Justice North made the comment that the ACCC’s case was a waste of public money on a number of occasions.

As you can imagine, the media headlines the next day focused heavily on Justice North’s comments that the ACCC’s case was a waste of public money. The following is a sample of some of the newspaper headlines which appeared after Justice North’s comments:

·       ACCC wasting public money: judge [3]
·       MUA boycott battle a waste of money: judge [4]
·       Judge queries ‘waste of cash’ [5]
·       Judge slams action on MUA [6]

During the hearing, the MUA lawyers had also made a number of serious allegations that the ACCC had withheld evidence from the court.  We did not quite understand how the MUA lawyers could be making this submission given that it was not an ex parte hearing and that we were under no legal obligation to advise the court of any evidence, of which we were aware, which may have conceivably assisted the respondent.

Despite our view that this particular submission was without merit and should not have been made, it also appeared to us that Justice North was leaning towards accepting this submission. 

Fortunately, for the ACCC, we had an ace up our sleeve which we were able use to change the course of the hearing decisively in our favour. 

A few weeks before this interlocutory hearing the ACCC had sought information from various telecommunications companies under the Telecommunications (Interception and Access) Act 1979. Under this legislation enforcement agencies, such as the ACCC, were able to obtain telecommunications data, ie telephone bills, which recorded all the calls made to and from a particular telephone number.

What we had decided to do was to obtain copies of all the MUA’s telephone bills, both for its branch offices and for individual MUA officials in an effort to establish whether the MUA had been in regular contact with the ITF or any of its overseas affiliates. 

I remember spending many hours trying to identify the owners of the various phone numbers which the MUA officials had called over the preceding few months. I did this by accessing publicly available reverse telephone number search programs in the US, Europe or the UK. When such search programs were not available, I did Google searches of the telephone numbers in the hope of getting lucky and being able to identify the owner of the telephone number.

Through these searches, I was able to establish a pattern of regular communication between a number of the senior MUA officials and their various overseas counterparts, particularly senior officials of the ITF and ILWU.  In most cases, the MUA official had used their own personal mobile phone to call their counterpart overseas on their own personal mobile phone.

It became apparent to the ACCC that this circumstantial evidence would be quite compelling in debunking the MUA’s arguments that they had not been in regular contact with their overseas affiliates in order to encourage them to boycott particular vessels.

I had prepared a lengthy affidavit which spelled out in excruciating detail the various communications between various senior MUA officials and their overseas counterparts, including when the calls had been made and the duration of each call. While the ACCC could not prove what was actually said during these conversations, the obvious inference from this evidence was that MUA officials had been inciting their overseas counterparts to boycott the vessels which had been loaded or unloaded using non-union labour.

Returning now to the interlocutory hearing before Justice North, one has to understand the position which the ACCC was facing just before lunchtime on 12 June 1998

Justice North had just spent the first day of the interlocutory hearing (ie Thursday 11 June 1998) telling the ACCC that its case was a waste of public money.

He had then indirectly suggested to the ACCC that it should abandon its case against the MUA because the broader dispute between the MUA, Patrick and the Howard Government was close to being resolved – as stated by Justice North:

Can it be right that the court entirely shuts its eyes to the very possibility that the dispute which excited the regulator’s interest might be resolved?[7]

Add to this the fact that Justice North appeared to be on the verge of accepting the MUA’s serious (and completely unfounded) allegations that the ACCC had withheld evidence from the court, and one can appreciate that the ACCC was in a very unenviable position.

It was in that context that we decided, just before the lunch break, to serve on the MUA a copy of my affidavit recording all the telephone communications which had occurred between MUA officials and their overseas counterparts. 

When we all returned from lunch on 12 June 1998, the MUA’s whole demeanour had undergone a radical transformation. Gone was the MUA's pre-lunch swagger -  indeed, their whole demeanour had become downright sheepish.

Furthermore, the MUA had now done a complete back flip on its earlier position that it would never agree to the ACCC’s demands. 

I remember Justice North looking very surprised when the MUA advised him after lunch that they were now willing to agree to the ACCC’s demands. 

Justice North made the relevant orders by consent and then congratulated the parties on reaching such a practical solution. The result of the hearing is best explained in the ACCC’s new release which stated:[8]

The Maritime Union of Australia has today advised the Federal Court that it will write to the International Transport Workers Federation withdrawing any call for the ITF and its affiliates to engage in boycott conduct of ships loaded with non-MUA labour in Australia between 7 April and 10 May 1998. The Australian Competition and Consumer Commission has advised the Court that this withdrawal addresses some of the concerns of the ACCC.

The ACCC's counsel, Mr John Trew, QC, has advised the Court that it has had concerns at the apparent ongoing communication between the MUA, the ITF and its affiliates which in the context of the international boycott of ships suggests the ongoing involvement of the MUA in the alleged boycotts of non-MUA loaded ships. The ACCC has advised the Court that it is prepared for the matter to be adjourned and to see whether the MUA's withdrawal is effective.

The ACCC sought interim orders from the Court to remove the alleged MUA request for and involvement in international boycotts of those Australian ships because of its concern for the effect on Australian business of such boycotts.

The ACCC will be actively monitoring the MUA's activities in this area and the matter will now proceed to a final hearing of the ACCC's claim for substantive relief. Justice North congratulated the parties on reaching a practical resolution of difficult issues at this time.

As is apparent from the second paragraph above, we could not help alluding, fairly pointedly, to the evidence which we had obtained concerning the regular telephone communications between the MUA and its overseas affiliates. 

I recall that after the hearing had finished the MUA lawyers immediately approached us in the foyer of the court to ask us how we had been able to obtain the evidence contained in my affidavit concerning the MUA official's communications with their overseas counterparts. Our lawyer, quite nonchalantly, responded to their question with the words:

Haven't you ever heard of the Telecommunications (Interception and Access) Act 1979?
I suspect that from that day on every MUA official made certain to never again call any of their colleagues from the ITF or overseas affiliates using their own personal mobile phones.

Boomerang Ship [9]
One of the most appalling events during the Waterfront dispute was the fate of the Columbus Canada which was dubbed the Boomerang Ship in the Australian media.

The Columbus Canada has been loaded in Australia using non-MUA labour before setting sail for the US.  Unfortunately, this vessel became the target of a concerted campaign of boycotts by US dockworkers which prevented it from unloading its cargo. As a result of these boycotts, the vessel was ultimately forced to return to New Zealand to be unloaded by union labour.

The Columbus Canada left Australia on 21 April 1998, loaded primarily with food, such as frozen and chilled meat, wine and cheese.  There was 700 tonnes of meat on the vessel, valued at around $3 million, and 2300 tonnes of other food products. It was also one of the first vessels which had been loaded by non-MUA labour to leave Australian shores.  Its first port of call, after picking up further cargo in New Zealand, was Los Angeles in the US.[10] 

On arrival at Los Angeles, the vessel was prevented from unloading its cargo due to picket lines organised by the ILWU.  The picketers allowed the New Zealand cargo to be unloaded but refused to allow any of the Australian cargo off the vessel.

After numerous attempts to unload the Australian cargo in Los Angeles over a period of 18 days, the owners of the vessel, the Columbus Line, met with picketers at the Matson Terminal and agreed that no Australian cargo would be unloaded in Los Angeles. Rather they agreed to send the vessel back to New Zealand where the Australian cargo was transferred to another Columbus line vessel and shipped back to the US.

The boycott of the Columbus Canada caused an outcry amongst the meat industry, business groups, farmers and the Howard Government.  Criticism of the union’s actions became more intense following reports that some of the chilled meat on the vessel had started to rot.

The Australian meat industry was very critical of the actions of the unions due to the damage which this boycott caused to both the particular exporters whose products had been held up, as well as to Australia’s reputation as a reliable exporter of meat. 

While the ACCC had made the fate of the Columbus Canada the focus of its case for interim orders against the MUA in Australia, unfortunately, our orders were unable to prevent the union’s actions towards this vessel.


[1] Interim injunction, continued, ACCC news release, dated 5 June 1998 - http://www.accc.gov.au/content/index.phtml/itemId/87298/fromItemId/378006
[2] MUA boycott battle a waste of money: Judge, The Daily Telegraph, 12 June 1998, p. 23
[3] The Canberra Times, 12 June 1998, p.4
[4] Daily Telegraph, op. cit., p. 23.
[5] Financial Review, 12 June 1998, p. 3.
[6] Herald Sun, 12 June 1998, p. 6.
[7] Daily Telegraph, op. cit., p. 23.
[8] Maritime Union of Australia, ACCC news release, 12 June 1998 - http://www.accc.gov.au/content/index.phtml/itemId/87294/fromItemId/378006
[9] The boomerang ship, Herald Sun, 28 May 1998, p. 11
[10] Ibid.

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