The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 8 - Easter Aftermath

Part 8 – Easter Aftermath

Close call

When I got back to work on Easter Monday, I found out that it had not just me and my Assistant Director who had been in the thick of things over Easter. The ACCC’s NSW Regional Director (RD) had also had a very close call.

It turned out that our RD had decided to go down to the picket line on Saturday morning to observe events. Unfortunately, he had gone alone, as no other Sydney staff member had been willing to go with him. On arrival, he did what most of the ACCC’s RD's had been doing – he introduced himself to the leaders of the picket line as the ACCC’s NSW Regional Director and advised them that he was there to observe events.

During the picket, a number of MUA members and their supporters had been listening to the radio. There had been a running commentary on the radio about developments at Port Botany and the movements of the Australian Endeavour.

At some stage during the broadcast, Professor Fels had come on the radio and announced that the ACCC had a number of officers observing events at Port Botany. While this was supposed to be a reference to me and my colleague, who were behind the picket lines, it was immediately understood by everybody on the picket line to be a reference to the ACCC RD who, it now seemed, was on the “wrong side” of the picket line. After Professor Fels made his comment, one of the picketers immediately turned to the rest of the picket line shouted - “That’s the ACCC guy” and pointed at our RD. At this, half a dozen picketers started walking rapidly towards the RD.

It was apparent to the RD that these pickets meant to cause him harm. Accordingly, the RD started to move away from the men and towards his car, very quickly. He got to his car, jumped in and drove away at speed. Unfortunately, he noticed that some of the men who had been coming towards him had also apparently jumped into a car and were coming after him.

After a short time, the RD realised that the car pursuing him only had one occupant. While this greatly reassured him, he was still concerned about what this pursuer may do to him if he caught him.

After trying to lose the pursuer through the streets of Port Botany for some time, the RD had a clever idea. He decided to simply stop on the side of the road, with the engine running and then sit in his car. He reasoned that if the pursuer decided to get out of his car to come over to the RD’s car, then the RD could wait until the pursuer got quite close and then slam his foot on the accelerator and drive off at speed. In this way, there was a chance he could lose the pursuer once and for all.

The pursuer obviously had not expected this development and was unsure of what to do next. I suspect that the pursuer also did the maths. He probably realised that if there was any trouble it would be a one-on-one contest rather than the more comfortable 30-to-1 odds which he had enjoyed down at the picket lines.

Accordingly, the pursuer decided to drive away, leaving our RD sitting nervously in his car.

After a little while, the RD steadied his nerves and drove home. That was the last time the RD went down to observe the picket lines.

Recriminations and harassment

In the days following the Easter weekend, the recriminations were flying thick and fast between the MUA and the ACCC. John Coombs accused the ACCC of harassing the MUA.

Professor Fels responded to these criticisms by saying[1]:

It was in every paper and TV screen in the country that the MUA were proposing to breach section 45D and DB of the Trade Practices Act and, in those circumstances we had to respond.

We were quite surprised Mr Coombs said we here harassing him. We were reacting to widely publicised comments from him that the MUA would be breaching the Act.

We have been interviewing people from the waterfront over the last couple of months in response to a couple of possible breaches on the waterfront that have come to our notice.

We are on no one’s side in this dispute. We will look at any alleged breach of the Act by anyone on either side, whether on the product market or the labour market side, in an impartial manner.

The fact is that the Parliament has recently passed the law prohibiting secondary boycotts and our duty is to apply the normal techniques of law enforcement in this area.

Coombs’ references to the ACCC “harassing” the MUA may have been a reference to an incident which occurred one night around Easter when I insisted on hand delivering a letter to the MUA’s national office.

I was with two AGS lawyers one night after we had prepared yet another warning letter to the MUA about its boycotts. Ordinarily we would have emailed the letter or had it delivered by a process server to the MUA’s Head Office.

On this particular occasion, I announced to the two AGS lawyers that I had decided to personally, hand deliver the ACCC’s letter to the MUA’s Head Office that night. When the lawyers asked me why, I explained that I was sick of the fear and intimidation that we had been forced to accept since the Waterfront Dispute broke out. I said it was not right for the team involved in the Waterfront matter to live in the constant fear of being beaten up just because we were doing our jobs.

I probably added a few more clichés for good measure – for example, if we change the way we live our lives, then the proponents of violence have won and so on. I have never been terribly slow at climbing up on my high horse.

The two AGS lawyers looked at me quite nervously. I think the question on both of their minds was “Do we have to come with you?” So much for stirring them both up into an idealistic fervour with my fighting words!

I remember turning to one of the lawyers and saying “You don’t have to come with me if you don’t want to. I know you have a young family.” I had said this as a joke to try to relieve the tension which my announcement had created. However, the lawyer that I had directed my comment to, just looked at me and said, “Thanks Mike” and left.

I must say this lawyer’s decision to leave made me realise the stupidity of my plan. However, despite having this realisation, it did not dissuade me.

The other AGS lawyer (who incidentally had a grown-up family) and I started the fairly long trek from the ACCC offices, which at that time were at 175 Castlereagh Street in Sydney, to the MUA’s Head office on Sussex Street.

When we arrived at the MUA’s head office we observed that the front door was locked, and that there was nobody downstairs in the small lobby. However, we noticed that there was an intercom. In addition, all the lights in the offices upstairs were on and it sounded to us like there were a great number of MUA staff upstairs working back late.

I buzzed the intercom and a man answered. I announced that I was Michael Terceiro from the ACCC and that I had a letter which I had to hand deliver to the MUA. The intercom went quiet for a few seconds, before the voice came back and said, “Just slide it under the door”. The AGS lawyer immediately turned to me with a look on his face which said, “Well, we tried.”

However I was determined. I buzzed the intercom again. The voice again answered and I again explained who I was and that I had to deliver the letter personally to an MUA official. This time the voice was much more decisive – he commanded me to slide the letter under the door.

I was quite annoyed by this stage. I buzzed the intercom a third time. This time the voice did not answer. I buzzed a fourth time and again there was no answer.

I must admit I was getting more and more annoyed. I had wanted to prove a point - ie I was not going to live in fear of getting beaten up for just doing my job. But how could I prove my point unless I could actually come face to face with at least one MUA official or employee late at night on their own turf and deliver my letter?

I then remembered that I had the general switchboard number for the MUA in my mobile phone. Accordingly, I took out my mobile and called the MUA’s reception.

Coincidentally, I got through to the same voice that I had been speaking to earlier over the intercom. I again explained to him who I was and that I needed to hand deliver the letter to an MUA official. I probably made it sound like I would get the sack unless I personally delivered this letter to somebody at the MUA, which was clearly not the case.

The voice on the telephone was obviously getting sick and tired of me by this stage. He told me with considerable exasperation that:

• nobody from the MUA was going to come downstairs to get the letter off me; 

• he was very busy; and 

• I should just slide the letter under the door and go away. 

He then hung up.

I was totally miffed by this stage, so I again called the MUA’s switchboard number. I heard someone answer the phone but as soon as they heard my voice, they hung up.

It was at that stage that I finally accepted that no MUA person was going to come downstairs to get the letter off me and that I had no other option but to slide the letter under the door.

Accordingly, I slid the letter under the door (putting the AGS lawyer and my “former” friend out of his misery) and we left.

Despite not actually hand delivering the letter to an MUA official, I found this entire episode quite satisfying. We had not let fear dictate our actions (which is not to say that we were not terrified the entire time when we outside the MUA offices trying to deliver our letter).

It dawned on me later that maybe the MUA had not come downstairs because they had been scared of us. The MUA may have suspected that my request to serve a letter on the MUA late at night, was simply a ruse to try to get them to open the front door, so that 100 SAS Commandos could immediately swarm into their offices and beat them all up. Maybe fear did actually triumph that day.

Legal actions

During the Waterfront Dispute, there was a plethora of legal actions. I will not be discussing all of these legal actions in any detail in the Untold Story because they have been dealt with in considerable detail in both Waterfront and the Bastard Boys mini-series. I will only be touching on various aspects of these actions as they relate to the ACCC's investigation and litigation.

The MUA had commenced legal proceedings against Patrick, almost immediately after the sacking, seeking the reinstatement of the MUA workforce. These legal proceedings raised various allegations including claims that Patrick had breached the Corporations Law by effectively stripping assets from its operating companies.

Patrick then commenced its own legal proceedings against the MUA in Australia and against the ITF in London. In Australia, Patrick was seeking damages against the MUA for the effect of the various picket lines on its business. In London, Patrick was seeking various orders to prevent the ITF from facilitating a global boycott.

The MUA subsequently commenced further legal proceedings against Patrick, Corrigan and Peter Reith alleging that they had been involved in a conspiracy to sack the MUA workers.

Corrigan was continually telling the media at the time that he had advice from his lawyers that all of the actions he had taken to get rid of his MUA workforce were “completely lawful”.

We at the ACCC wanted to know whether Corrigan’s views about the sacking were legally correct. After speaking to our own lawyers, we formed an entirely different view to Patrick on the legality of its actions. Our view was that Patrick’s actions in sacking its entire MUA workforce were almost certainly unlawful. We also believed that the MUA would ultimately be successful in its primary case – namely, that the sacking of the MUA workers had been illegal and that they should be reinstated.

We also formed the strong view that the MUA must have known that their prospects of winning their case for the reinstatement was very strong.

This raises the obvious question:

Why did the MUA decide to engage in blatant breaches of the TPA, and to ignore numerous warnings from the ACCC about their conduct, if they must have known that ultimately they were going to win their case?

I believe that the reason the MUA decided to engage in unlawful picket activity, despite knowing that they would win their case, was because they did not want to take the chance that the MUA would be shown up as lazy and incompetent by the non-union labour. In other words, the MUA feared that if the non-union workers were able to work unimpeded, that they may be able to achieve higher container lift rates than the MUA. No doubt if this had happened, Corrigan and Reith would have both used this information to argue that the MUA had been out performed by a bunch of half-trained farmers.

I think it was one of the MUA’s greatest propaganda successes to convince the various unions and other people who supported them during the dispute that the MUA needed to engage in boycott activity because the outcome of their legal proceedings was uncertain. The MUA never had any doubts that they would win their case for reinstatement. Indeed, they won their case quite convincingly at every stage in the court process – ie at first instance, on appeal to the Full Federal Court and finally on appeal to the High Court.

I also have my doubts that Corrigan ever actually believed that his extreme strategy of sacking his entire MUA workforce was going to work. While I am sure that Corrigan hoped that he would be successful in getting rid of his MUA workforce, he always knew that this was going to be a highly unlikely outcome. I think Corrigan knew that whatever happened, he was likely to receive a significant handout from the Howard Government to assist him in retrenching many of his MUA workers. That is exactly what happened – the stevedoring industry was permitted by the Government to impose a levy on containers which was then used to fund MUA redundancies.

Simply put both the MUA and Patrick had highly cynical motives for their actions, although they continually tried to dress up these motives as ideological convictions. Both the MUA and Patrick were also able to win over a great deal of support by parading these false ideological convictions – ie the MUA were successful in "taking in" most of the union movement as well as a great deal of public opinion, while Patrick was successful in "taking in" Peter Reith and the Howard Government.

Both parties presented the case to the media and the general public as the quintessential battle of capital against labour – however, nothing could have been further from the truth. The MUA’s primary goal in the dispute was to maintain its closed shop on the waterfront and to preserve the high wages and excellent working conditions enjoyed by its members. Corrigan’s primary goal was to cut his costs so that he could make lots of money. However, rather than cut costs like most businesses by economising, becoming more efficient and innovating, Corrigan wanted to cut his costs by getting corporate welfare from the Howard Government.

Ironically both the MUA and Patrick came out of the Waterfront Dispute as winners. The main losers from the dispute were the Australian taxpayer, who ended up effectively funding the redundancies, and a large number of Australian businesses which suffered financial damage because of the boycotts. However, more about the winners and losers later in the Untold Story.

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[1] “Fels walks the industrial relations tightrope without fear or favour”, The Australian, Monday, 13 April 1998, p. 2.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 7 - Easter 1998 Continued

Part 7 - Easter 1998 - Continued

Violence on the picket lines

By about 11am the picket line was becoming very agitated. They were shaking the gates at the entrance to the facility and it looked like they were going to break through. We knew if this happened, we would be in a great deal of trouble. We believed that it was fairly certain that if the picketers got through the gate they would beat up everybody on the wrong side of the picket line.

I remember I turned to my colleague when it looked like the fence was going to collapse and the picketers were going to swarm into the facility, to ask him what he thought we should do if that happened. We both decided that we were too tired to run away and anyway there wouldn’t be anywhere on the dock to hide from the 1000 plus picketers. We were also quite certain at the time that if the gates came down the fact we were ACCC officers would not matter to the picketers. Accordingly, we decided that our only option was to stand our ground and try to fight our way out. I know this sounds very dramatic, but that is what we had resolved to do at the time.

The manager of security came across to us and told us that we had to go inside. He explained that as part of the deal with the MUA, all the security guards and guard dogs had had to be “secured” in a room so they would not threaten the safety of the tugboat crews. Apparently, some picketers had seen me and my colleague outside and had complained to Patrick that we had not been “secured”.

At the time, I thought this was the most ridiculous thing I had ever heard. On the one side of the picket line, there were about 15 security guards, six guard dogs, one former British SAS officer, 2 Freehills lawyers, 1 cameraman and two ACCC officers. On the other side, there were at least 1000 picketers shouting out at the top of their voices that they were going to kill us. And the MUA had the gall to claim that we posed a threat to them?

Anyway, we agreed to the manager’s request and went inside the building near the entrance to the container facility. This way we would be out of the sight of the picketers. On entering this building, we were struck by how the entire inside of the building had been destroyed by the MUA workers when they were removed from the premises on the previous Tuesday. All the filing cabinets had been opened and the documents strewn all over the floors, every piece of furniture which could be pushed over had been pushed over, property such as computers and other electrical equipment had been smashed, cabling had been pulled out of the walls, and the windows had been smashed. Obviously, the MUA had not gone quietly!

We were inside this building when the tugboats brought in the Australian Endeavour. Once the vessel had berthed and been tied up, we were able to leave the building to watch the unloading.

Fortunately, for us the gates did not collapse. I cannot remember precisely what distracted the mob, but it may have been the arrival of the bus with the non-union labour force.

I remember watching as the bus of non-union workers approached the picket line. The picketers were hurling abuse at the occupants of the bus and throwing rocks. As soon as the bus was close to the picket line it was swarmed upon by the picketers, who proceeded punch, kick and spit on the bus, and to hit the bus various makeshift clubs. As far as I could see, the police who were in attendance did nothing to stop the wholesale destruction of the bus.

The bus finally made it inside the fence. I immediately went up to the bus to examine the damage.

Most of the windows had been smashed and there were hundreds of dents on every side of the bus. There was great deal of saliva on the side of the bus from where all the picketers had spat on it. I suspect that the bus was so badly damaged that it had to be written off - every panel and almost every window would have had to be replaced.

The non-union labour force had obviously been expecting this less than friendly reception and had taken some precautions. They had brought mattresses on the bus, which they pushed up against the windows to protect the occupants from being assaulted or struck with projectiles. Even though the picketers were able to smash the windows, they were unable to assault any of the non-union workers inside because of the mattresses. Unfortunately, this was not the case at some other sites where non-union workers were assaulted by picketers.[1]

When the non-unionists got off the bus, they were visibly shaken. I remember some of the workers looked as white as sheets when they got off the bus.

This whole episode made me very angry. These non-union workers were being used by both sides as the proverbial pawns in the entire Patrick – MUA game.

First, I could not believe the barbarism of the picketers. I have no doubt that if the picketers had been able to get their hands on the occupants of the bus that they would have seriously injured or even killed these people.

Second, it seemed to me that it would have been very easy for Patrick to bring these workers in by boat or even by helicopter rather than requiring them to run the gauntlet of the picket line. I suspected then and still suspect now that these workers were sent through the picket line by Patrick for the cynical purpose of provoking the picketers into violence which Patrick could later use to try to turn public opinion against the MUA.

Arrival of the Australian Endeavour

Some time after the Australian Endeavour arrived at Port Botany, the non-union labourers started unloading the vessel. It was at this time that Corrigan arrived via helicopter. He was followed by a steady stream of helicopters carrying journalists from every major news agency. Corrigan had planned to helicopter in the reporters and then to hold a press conference.

Once all the reporters had arrived, Corrigan gave a short speech during which he declared that today was a momentous day. He said that it was the first time in 50 years that a container ship had been loaded in Australia using non-MUA labour. It was obvious to all that this was the story which Corrigan wanted all the reporters to report.

Having worked with Professor Fels for a few years, I had learnt a great deal about dealing with the media. I knew immediately that 30 journalists were not going to write 30 stories with the same angle at the request of Corrigan. Each one of these journalists would be looking for their own individual angle on the day’s events.

As soon as Corrigan opened the press conference for questions, he was hammered with questions from a multitude of different angles - very few of which adopted the line which Corrigan wanted them to report. I have to admit that I enjoyed seeing Corrigan’s discomfort at the questions which he was being asked. He was becoming more and more exasperated and angry at the media’s questioning.

When the press conference was over, the helicopters started shuttling the reporters and Patrick’s management out of Port Botany. At one stage Patrick’s then Company Secretary, who had also been shuttled in with Corrigan, saw me amongst the crowd. He immediately came across to me for the sole purpose of telling me off because the ACCC had not yet commenced legal proceedings against the MUA.

At this stage, I had been working for 31 hours straight and was in no mood to stand there and listen to abuse from anybody, much less somebody employed by Patrick. I must admit that at the time I gave some serious thought to just punching him in the head. I thought that while this person was probably sitting at his local yacht club sipping a latte, approximately 30 non-union workers were taking their lives in their hands by trying to get through a 1000-strong mob.

I hate to say it but the APS Code of Conduct did not play a part in my decision not to punch him in the head. Rather, the main reason I didn’t punch him in the head was because I was so exhausted – I am sure it would not have been much of a punch! Instead, I decided to walk away.

Extraction

After the press conference, the Assistant Director and I decided that it was time to leave.

The problem was that we had not worked out how we were going to get out. It seemed that there was no option but to catch a helicopter ride out of Port Botany, as trying to walk out the front gate would have been suicide. By this time, the picket line was even more incensed as the non-union workers had started unloading the vessel.

I should add that even to our untrained eyes, the non-union workers did not seem to very adept at unloading containers. They were going very slowly and we witnessed a few near mishaps. However, given what these workers had just been through I think it was only fair to give them the benefit of the doubt. I doubt I would be able to focus on my job properly either, if I had just been attacked by a mob of 1000 people.

I realised that by this stage my Assistant Director was well and truly over the whole Port Botany experience. Indeed, I recalled an earlier warning sign that he was at the end of his tether and needed to go home.

A few hours before we had been wandering around the container facility by ourselves without the mandatory security guard and guard dog. A security guard had approached us to tell us off for not following the security protocols. My Assistant Director immediately turned to this security guard (who by the way must have 6 foot 6, a gym-junkie and armed with what appeared to be a extendable baton) and started to berate him at the top of his voice for 5 minutes about how the entire security arrangements were a joke and that one measly guard and a guard dog were not going to protect us from 1000 picketers. The security guard just listened patiently to my Assistant Director's tirade and then simply said “okay” before walking away.

There were also a few signs that I was losing it as well. For example, I remember going up to one of the security guards at one stage and asking him if I could pat his guard dog. He looked at me as if I was mad and said “Yea, if you want to lose a hand!”

When the opportunity came for us to hitch a helicopter ride, I made sure my Assistant Director got on one of the first helicopters out.

I was forced to wait until the very last helicopter. Despite the fact that I had been working over 30 hours by this stage, I soon discovered the futility of trying to push in front of a journalist for a seat on a helicopter when they are facing an Easter Saturday deadline.

I eventually got onto the very last helicopter ride out of Port Botany. I strapped in, and tried to avoid eye contact with my fellow passengers.

I had a nervous moment when the person immediately next to me in the helicopter asked me, when we were in the air, whether I was one of the “Freehills lawyers”. When I replied that I wasn’t a Freehills lawyer but rather was an ACCC officer I thought from the look on the guy's face that he was going to push me out of the helicopter. Fortunately for me, Corrigan just shook his head and turned away with a slightly miffed look on his face.

When we landed over at Mascot, I asked Corrigan’s bodyguard whether I could get a lift with them back to the city. His bodyguard refused so I asked Corrigan directly. He agreed quite unenthusiastically.

As we drove back to the city in Corrigan’s security van, he discussed with a colleague his frustration with the media and how they didn’t seem to want to run the story he wanted them to run. I thought to myself “This guy really needs some media training from Professor Fels”.

I felt like telling him that he couldn’t expect 30 journalists to run a story about the days events from exactly the same angle – rather he should have tried to give the story exclusively to one paper and one television network. In this way, he may have been successful in getting somebody to run his preferred spin on the story. However, I decided against giving Corrigan any media advice partly because I was bumming a ride and partly because I could see Corrigan was in a very bad mood. He has started the day believing that it would be his crowning glory– but it was now rapidly turning into a media fiasco.

When I got back to work, I jumped in a cab and went home. By the time I got home, it was about 7pm. It dawned on me that I had been working continuously for 34 hours except for a five-minute nap on the wharf earlier that day. I fell asleep as soon as I got home and woke up 17 hours later.

When I woke up, I asked myself whether our trip to Port Botany had been worthwhile?

It was clear that the entire escapade had been extremely dangerous for both of us – we had been chased by boats on Port Botany, stranded on a wharf at 1am, forced to climb over a deep pit in pitch darkness, had rocks thrown at us and had come perilously close to having to fight our way out of the container facility. Add to that the fact that we had obtained virtually no evidence and you could hardly call it a red-letter day.

However, we did gain one important bit of intelligence from the whole Port Botany experience - we now knew unequivocally that both sides of the dispute hated us. It was apparent that Patrick hated us because they thought we were not sufficiently involved in the dispute, while the MUA hated us because they thought we were too involved in the dispute!

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[1] “Attack on bus leaves four injured”, SHM, 16 April 1998, p. 16.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 6 - Easter 1998

Part 6 - Easter 1998

Introduction

One of the most significant events in the entire dispute occurred on the Easter Weekend, which fell in early April 1998. The Australian Endeavour container ship, which was part of ANL, then a government owned shipping company, was to berth at Port Botany on Easter Saturday and be unloaded using non-union labour. This was to be the first time in over 50 years that an Australian container ship was to be unloaded by somebody other than the MUA. Indeed, Corrigan and Peter Reith were very publicly talking up this event as the decisive moment in the whole dispute. It was inevitable that the ACCC would be dragged in, whether we liked it or not.

We were obviously very busy trying to investigate simultaneous pickets in almost every container port in Australia, as well as trying to investigate the overseas conduct by the ITF in organising a global boycott. Accordingly, I had started work at 9am on Good Friday.

I had been working in my office for a few hours when I received a call from a senior manager who floated an idea by me. He explained that the Australian Endeavour was scheduled to arrive in Port Botany the next day, on Easter Saturday, 11 April 1998. He said Professor Fels wanted to get some ACCC officers onto the Australian Endeavour before it arrived at Port Botany so that he could announce that he had officers on the vessel who were safeguarding its passage into Port Botany. The idea was that the two officers would be put on the vessel – namely, me and my Assistant Director - via helicopter.

I carefully considered this proposal for about a nanosecond and politely but firmly refused the assignment. I decided to decline the assignment after carefully weighing up the following factors:

• the very strong emotions that had been stirred up in the last few days;

• the significance of the Australian Endeavour making it into Port Botany and being unloaded by non-union labour;

• the fact that the Australian Endeavour was likely to be crewed by between 15 to 20 people, most of whom would be MUA members; and

• (the decisive factor) the fact that I was not a very strong swimmer.

I was genuinely concerned that both I and my Assistant Director may end up going over the side of the Australian Endeavour either accidentally or on purpose. I thought our presence would be much too inflammatory for the dozen or so angry MUA crew members on board the vessel.

I subsequently discovered that the ship’s captain was also not very keen on the plan. In addition to having concerns about our safety, he was also concerned that the two ACCC landlubbers would end up getting seasick.

A while later I received another call from this same senior manager who suggested a different and marginally less hair-brained scheme – namely to “embed” both me and my Assistant Director inside the Patrick Port Botany container facility, behind the picket lines. This would allow Professor Fels to say that he had ACCC officers on the wharf. For some reason I agreed to this proposal, mainly because I though it was a much safer option that Plan A.

I started to regret my decision when I received my detailed instructions on how we were supposed to get to Port Botany. We had to meet two of Corrigan’s lawyers, from the Freehills law firm, at the Opera House wharf at midnight on Good Friday and then get on board a high speed charter vessel, which would take us to Port Botany. I seem to recall I may have been provided with a password to use when we met up with the Freehills lawyers. I cannot recall what the password was, but it was probably something like “Rosebud”.

Getting behind the picket lines

Accordingly, we made our way down to the Opera House and met up with the two Freehills lawyers at midnight. We went around behind the Opera House to the wharf and there boarded a high speed charter vessel which was to take us to Port Botany under cover of darkness.

Once we were aboard the charter boat, we met our fellow passengers in addition to the two Freehills lawyers:

• the captain and his first mate who appeared to me to be quite terrified at the prospect of taking us to Port Botany; 

• a former British SAS officer who had been hired by Corrigan to provide advice on security issues; and 

• a cameraman whose role it was to capture video footage of the boycott activity.

We set sail for Port Botany. The former British SAS officer surprisingly decided to take a nap, presumably to prepare himself for the tasks ahead. The Freehills lawyers went up to the deck to keep an eye out for any MUA any vessels which may be trying to intercept us.

Meanwhile I, the cameraman, and the Assistant Director decided to avail ourselves of the hospitality on the charter vessel. After a couple of beers and bourbons, we were summoned onto the deck by the Freehills lawyers. They explained to us that the MUA had set up a makeshift flotilla of small vessels in Port Botany whose role it was to intercept any vessels seeking to get in behind the picket lines from the open sea. I admitted that I could not see any of these MUA vessels because it was so dark. The reason I could not see these vessels was because they had all turned off their lights so they would not be spotted by people like us.

However, the Freehills lawyers had come prepared – they had a pair of night vision binoculars. I was so excited at the prospect trying out a pair of night vision binoculars, that I grabbed the pair from the Freehills lawyer’s neck without first giving him an opportunity to take the strap off. After apologising for accidentally garrotting him, I was able to make out a few small MUA crewed vessels sailing around Port Botany looking for intruders.

I was curious why the people on these vessels appeared unable to see us. The captain explained to me that the reason they could not see us was because he had also decided to leave his lights off. He was worried that his vessel may be identified by the MUA, which may subsequently result in recriminations and reprisals.

Fortunately, the charter vessel we were in was much more powerful and manoeuvrable than the small MUA vessels which were trying to intercept us, so we were able to navigate our way through the flotilla without incident. One vessel was able to get quite close to us, but all the person on board could do was hurl a few insults at us before we left him in our wake.

Unfortunately, when we arrived at Port Botany the captain, in his haste to get away, dropped us off at the wrong location. Instead of letting us off on the Patrick’s wharf, he let us off on a small wharf which was not actually attached to the Patrick’s wharf. Accordingly, we had to get across a fairly large gap between the place where we had been dropped off and the Patrick wharf without falling into a dark hole which appeared to be four or five metres deep. What made our task more difficult was that it at about 1am in the morning and pitch dark.

One of the security guards on the Patrick’s wharf had been expecting us. When he realised we were stranded on the wrong side of the wharf, he went and retrieved a ladder which he put over the gap. The idea was that we would climb across the ladder to get to the correct side of the wharf.

I climbed across quite slowly. When I got to the other side, I thought I should assist the next person to come across by holding down the end of the ladder to make sure it was secure. Foolishly, rather than putting my foot on the ladder where it was resting on the wharf, I put my foot on the ladder at the point where it overhung the wharf. The result was that the ladder shot up in the air just as the former British SAS officer was seeking to cross the ladder. Unfortunately, it struck him between the legs.

Even though I immediately apologised, he did not look very impressed by what I had done. I thought for a moment whether it might be safer for me if he did not actually get across to the Patrick wharf. Accordingly, I gave a fleeting thought to pulling the ladder across to my side and leaving him stranded on the other side. I decided against this strategy as it would no doubt have just have antagonised him even more.

Embedded behind the picket lines

Once we had all made it over to the correct side of the wharf, we travelled to the main office to meet the manager in charge of security. On entering the main office, we noticed that all the offices had been trashed – papers were all over the floor and furniture had been smashed or pushed over. We asked what the Freehills lawyers what had happened. They told us that the MUA staff had trashed most of the offices when they were removed from the premises the previous Tuesday.

We met the manager in charge of security at Port Botany, who explained the safety rules. We were to go nowhere outside the main office without being escorted by at least one security guard and a guard dog. He also advised us that he could not be responsible for our safety if we did not follow this direction.

The site was occupied by about 15 security guards and about half a dozen Doberman or German shepherd guard dogs. I must admit they looked like a very tough lot. Contrary to what I had expected, they did not walk around with balaclavas.

We immediately asked to do a tour of the facility. We left the office with a couple of security guards and guard dog. It must have been about 2am by the time we started inspecting the facility.

The first thing we noticed was that there was a small group of protestors outside the facility. On seeing us, these protestors decided to follow us around the facility from the other side of the fence.

This small band of protesters initially hurled a variety of insults at us, which did not phase us very much. However, when we got a little bit too close to the perimeter fence a hail of rocks of various sizes rained down on us. We quickly retreated to a safer distance.

I noticed that my Assistant Director appeared to be picking up one of the recently launched projectiles. I worked out that it may have been his intent to send the projectile back to its source. I immediately stopped him and explained that while my knowledge of the Australian Public Service Code of Conduct was fairly sketchy, I was pretty sure it did not permit us to throw rocks at the picketers, even if they had thrown rocks at us first.

I also noticed a small red light flickering around on our head and torsos. We were quite puzzled at what this red light was. The security guard explained to us that it was the infrared light from a laser pointer. He said that the picketers had brought some of these laser pointers to the docks to try to scare the guards at night into believed that the light was in fact the infrared sight on a high powered rifle.

I had decided before heading to Port Botany not to bother carrying a note book as in pitch darkness and being on the move it would have been impossible to take written notes. Rather I brought a small hand held tape recorder, which I could use to make audio recordings of any observations or potential witness interviews. I decided to tape a few examples of the abuse being hurled at us by protestors so that I would be able to give the staff back at the ACCC some idea of what it was like at the facility.

After doing our tour, we spent some time thinking about the likely course of events later that day when the Australian Endeavour arrived. We knew that there were three possible places where the MUA could take action to impede the Australian Endeavour arriving and being unloaded- either:

(a) the MUA staff on the Australian Endeavour may do something to prevent that vessel coming into Port Botany; 

(b) the MUA staff on the tugboats may refuse to bring the Australian Endeavour into Port Botany; and/or 

(c) the picket line may prevent the buses of non-union labour from getting through the picket lines.

Given that we knew that the Australian Endeavour was owned by the Commonwealth Government, we doubted that the MUA would be able to do much to stop the vessel from coming into the port.

We thought the main risk was that the MUA may withdraw towage services. It was for this reason that we had sent the MUA yet another warning letter the day before cautioning them against withdrawing towage services to the Australian Endeavour.

As morning approached, there was a great degree of anticipation. The picket line at the entrance to the facility had grown so that it was now more than 1000 picketers. The picketers started chanting and hurling insults at anybody they could see inside the facility, including us. It was apparent to us that the picket line was getting to such a size that the few police outside the facility would not be able to do anything to restrain its actions. That was assuming that they had been of a mind to do so, which they clearly were not.

Word got to us that the MUA crews on the tugboats had refused to bring the Australian Endeavour into port. The MUA’s alleged concern had been with safety – namely, that the tugboat crews were at risk from the security guards and guard dogs. Accordingly, the Australian Endeavour had to wait off the coast for a number of hours until a solution could be worked out.

I remember the Managing Director of Adsteam, which owned the tugboats, arriving at the MUA office to try to convince the MUA to change their decision about providing towage services. After a number of hours, he had brokered a deal with the MUA, whereby they agreed to provide the towage services. The MUA would provide towage services on condition that the security personnel and dogs were placed in a secure area well away from the tugboat crew prior to the tugs arriving.

We went out to the loading area of the wharf to await the arrival of the Australian Endeavour. By this time, I had been working for more than 24 hours straight and I was incredibly tired. I had been sitting on the wharf for a short time, when I closed my eyes for a couple of seconds. Before I knew it, I was fast asleep on the middle of the wharf near one of the large cranes. I was woken up by the sound of helicopters above me. I quickly realised that the helicopters were from various televisions networks and that a number of them had cameramen hanging out of the helicopters to film activity (and potentially inactivity) on the wharf.

I realised that it would have been very embarrassing not only for me but also for the ACCC and for Professor Fels if the evening news had featured images of one of the ACCC’s apparently fearless and intrepid investigators lying flat on his back asleep on the wharf. Accordingly, I quickly woke myself up and tried to look as fearless and intrepid as I could.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 5 - First Moves

Part 5: First moves

Office of Employment Advocate

As stated in Part 3 of the Untold Story, the Howard Government had very high expectations of the OEA in the event of a dispute with the MUA. However, these expectations were not met. Very soon after the dispute broke out, the OEA expressed the view that it did not have jurisdiction to get involved in the dispute. In other words, the OEA ended up vacating the field and leaving the entire enforcement effort to the ACCC.

As I understood the OEA's reasons at the time, they claimed that as the MUA staff had been sacked by Corrigan they were no longer technicially employees and as such the OEA did not have jurisdiction.

However, one can understand OEA’s position. The expectation prior to the sacking had been that Corrigan may seek to use non-union labour at some of his stevedoring facilities. Clearly if the MUA had sought to impede non-union workers getting to their workplaces, the OEA would have been expected to assure the safe passage of these non-union workers through picket lines. Indeed, there were reports in relation to other disputes, that OEA officers had boarded trains and trucks to assist non-union workers employed in other industries to get though picket lines

The problem which the OEA faced in the current case was that Corrigan’s actions in sacking his entire MUA workforce looked very much like a clear breach of the Freedom of Association provisions of the WRA – ie the MUA workers had been sacked for the sole reason that they belonged to a union. There was a very strong argument that the OEA’s priority should have been to investigate Corrigan for breaching the WRA, rather than helping Corrigan to get non-union workers through the picket lines.

Despite the dilemma which the OEA faced, the way it chose to get out of this dilemma was highly unprincipled. It decided not to assist either party to the dispute – ie it did not help Corrigan get non-union labour through picket lines nor did it investigate Corrigan for a Freedom of Association breach for sacking his entire MUA workforce. Ultimately, the OEA’s decision to do nothing during the Waterfront Dispute severely damaged it’s credibility as an organisation.

At the ACCC we were very disappointed by the OEA’s decision to stay out of the dispute - this meant we would have to do the whole job ourselves.

MUA’s first moves

The MUA was very quick to move after the sackings. Indeed, it was very impressive to see just how fast they were able to pursue so many different strategies simultaneously.

First, the MUA were able to mobilise a great number of protestors to get down to the wharves by skilfully playing the media. Having said that, it was not too hard for the MUA to get the media’s sympathy given the extreme nature of Corrigan’s actions. The MUA clearly had a flare for dealing with the media, particularly John Coombs who was very articulate and flamboyant. Corrigan on the other hand was very poor at dealing with the media because he came across as he was, namely cold and unsympathetic.

Second, the MUA went to the Federal Court to get interim injunctions preventing Corrigan from:

• sacking his MUA workforce;

• disposing of any assets or 

• using alternative workers. 

The MUA were very fortunate to get Justice North as the judge on their matter. He was probably the best federal Court judge for the MUA as he was clearly quite sympathetic to the union movement. Indeed, he made his name as a silk by representing unions in various in high profile boycott cases.

In particular, Justice North had been the counsel for the Australasian Meat Industry Employees Union (AMIEU) which had been taken to court on a number of occasions for allegedly contravening the boycott provisions of the TPA.

Justice North granted the interim injunctions sought by the MUA.

Third, the MUA appeared to have already approached the ITF to try to get them involved in the dispute. Mr Kees Marges, the ITF Docker’s Section Secretary was quoted as saying the day after the dispute:

Shipping lines should be aware that if their ships use Patrick in the future they will be targeted in ports around the world.[1]

Fourth, the Australian Workers Union (AWU) announced that it was contemplating taking boycott action to close down the whole Australian oil industry in support of the MUA.

Mood within the ACCC

It is fair to say that virtually nobody in ACCC enforcement wanted to work on the Waterfront Investigation, particularly in Sydney.

The main reason enforcement staff did not want to assist was because many of them had a philosophical objection to doing the work. Most enforcement staff, particularly in Sydney sympathised with the MUA and believed that Patrick had done the wrong thing. Ironically, the entire Waterfront Team also believed that Corrigan had done the wrong thing. However, we also knew that because Corrigan had not breached the TPA in sacking his MUA staff, there was nothing the ACCC could do about his conduct.

The Waterfront team was of the view that if Corrigan had breached the Workplace Relations by sacking his MUA staff that it was up to the OEA to pursue him for that conduct. By the same token, if Corrigan had engaged in any illegal corporate activities, such as asset stripping it was up to ASIC and the ATO to look into that conduct.

Another reason why some Sydney enforcement staff did not want to help was because they were concerned about the violence which was a daily occurrence on the picket lines. This was an entirely legitimate concern.

Nobody in senior management wanted to force anybody to assist in the waterfront investigations against their will. Unfortunately, the consequence of this was that the ACCC’s Waterfront Team remained very small – ie three officers for the duration of the dispute. Occasionally, we would get some assistance from a Regional Director for a specific task but that was quite rare. Accordingly, the small ACCC team and the external legal team ended up working enormously long hours.

Unfortunately, some senior enforcement staff could not help but share their opinions about the ACCC’s role in the Waterfront Dispute with the Waterfront team. On one occasion, a senior ACCC enforcement colleague called me a “Nazi” and "a collaborator” to my face and in front of some junior staff because of my role in the ACCC’s Waterfront investigation.

I responded by saying that the ACCC could not concern itself with whether Corrigan had done the wrong thing. Rather the ACCC had to fulfil its statutory function and enforce the TPA. The important principle was that for the ACCC to respect and uphold the rule of law. This was particularly important in circumstances where every other party involved in the dispute was breaking or ignoring laws with impunity and every other regulator was just sitting on the sidelines and doing nothing.

I added that the ACCC could not simply choose which laws it wanted to enforce. If the ACCC turned a blind eye to the blatant and premeditated breaches of the TPA by the MUA, the ACCC would lose its integrity and credibility as an enforcement body.

Unfortunately, my arguments did not convince my senior colleague of our bona fides. Accordingly, it was with some frustration that I facetiously asked him whether there were any other particular sections of the TPA that he was philosophically opposed to enforcing. I suggested that ACCC management could circulate a questionnaire to all enforcement staff asking them to identify which sections of the TPA they were happy to enforce and which they did not want to enforce!

Later, another fairly senior enforcement staff member decided to organise a collection in the office to raise money to support the MUA financially. I kept this information to myself as I doubt more senior ACCC management would have been very impressed with his actions in collecting money for the MUA. Indeed, it would have been a major media coup for the MUA if they had been able to say that even ACCC staff were contributing to the MUA cause.

ACCC’s response

As stated in Part 3 of the Untold Story, the ACCC had been investigating the ITF for some time prior to the sackings. Accordingly, the ACCC was quite advanced in its understanding of the way the ITF operated, how it was structured and where it possessed true industrial power.

Accordingly, Professor Fels was in a good position to make the following statement as soon as the ITF started making threats against Australian shipping:

We are focusing quite closely on the ITF threat – we are investigating that matter both in marketplace and legal terms at the moment…The ITF and any person in Australia associated with it, directly or indirectly would more than likely be in breach of the act if they attempt to apply boycotts in support of the MUA.

Even at this early stage, we believed we had an effective legal strategy for dealing with ITF threats to Australia shipping. The starting point was section 5 of the TPA which states:

Parts IV, IVA and V (other than Division 1AA) extend to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia.

Part IV of the TPA contained the relevant boycott provisions – sections 45D, 45DB, 45DA, 45E and 45EA.

Section 76 of the TPA created accessorial liability – namely a person would be liable for aiding, abetting, counselling, procuring, inducing or attempting to induce, being knowingly concerned, or conspiring with others to engage in a breach of the TPA.

The MUA was also a body corporate incorporated in Australia.

Therefore, we believed that we would be able to take action against the MUA in Australia for aiding, abetting, counselling, procuring, inducing or attempting to induce, being knowingly concerned, or conspiring with the ITF or any overseas unions or entities to engage in a boycott of ships which had been loaded in Australia by non-union labour.

The ACCC also believed that it could take legal action against MUA and ITF officials who aided, abetted, counselled, procured, induced or attempted to induce, or were knowingly concerned in, or conspired with the ITF or any overseas unions or entities to engage in a boycott of ships which had been loaded in Australia by non-union labour if these individuals were Australian citizens or persons ordinarily resident in Australia. 

I remember doing nationality checks on a number of senior officials of the ITF and other overseas unions to find out whether, just by chance, any of them were Australian citizens. For example, I discovered that until 1977 the head of the International Longshore and Warehouse Union (ILWU), based on the West Coast of the US, was an Australian, namely the legendary Harry Bridges.

We did not believe that we could take legal proceedings against the ITF directly as it was not engaging in conduct in Australia nor did it satisfy the other elements of section 5. We also did not believe there would be much point taking action against the ITF in Australia under the boycott laws if we would be unable to enforce our orders overseas where the ITF was based.

While the ACCC had a good legal theory about how to prove the MUA’s liability, it did not yet have the evidence to prove its legal theory or even know how to go about getting this evidence. Getting evidence that the MUA was conspiring with the ITF to organise a global boycott of Australian shipping was not going to be an easy task.

I am also sure that most of the unions who supported the MUA by joining picket lines during the Waterfront dispute never understood how easy it would have been for the ACCC to take action against them under the TPA for their conduct.

Under section 45DC(1), if two or more persons who were members or officials of the same union were involved in a picket line, the union would be automatically deemed to be involved in the picket line. The union would then have to prove that they were not involved in the picket line because, for example, it had been an independent decision of the two members or officials to get involved.

Section 45DC(2) also provided that any loss or damage caused by the conduct of two or more members or officials of the union would be automatically deemed to have been caused by the union. Again the union had the onus of proof in relation to displacing this presumption.

I doubt the MUA or ACTU ever explained these legal technicalities to these other unions.

Despite the ease with which the ACCC could have taken action against these other unions, it decided to focus its attentions exclusively on the MUA because it appeared to be the party which was orchestrating all of the boycott conduct.

ACCC’s Investigation

Investigating the MUA’s conduct during the Waterfront Dispute was a unique experience.

A significant amount of the evidence which the ACCC used in its cases came from media reports. Senior officials of the MUA would often hold press conferences in which they would brag about how they had engaged in illegal boycott activity or had encouraged other groups to engage in such conduct. Indeed, it got to the stage where the ACCC’s evidence collection often involved no more than putting a blank video cassette in the video recorder, turning on the TV and pressing record every time a MUA official, usually John Coombs, appeared on television to make admissions about the MUA’s latest boycott.

I always thought that my mum should have been put on the ACCC payroll at that time, as she was remarkably diligent in recording any such televised admissions by the MUA at that time and then sending me copies of her videos. Given how few ACCC staff were involved in the investigation, I was grateful for any investigatory assistance I could get.

What was more difficult was actually obtaining witness statements from industry players. We would generally try to get statements from individuals who had been the victim of boycott action or who had witnessed such a boycott. Unfortunately, most industry players did not want to give evidence to the ACCC for fear of reprisals from the MUA or other unions in the future.

Another problem we faced were the time frames in which we had to obtain evidence. It was simply taking us too long to get detailed statements from the few industry witnesses who were willing to give evidence.

Accordingly, we knew we had to work out a better way of obtaining and presenting evidence if we were going to be able to commence urgent litigation to try to stop the boycotts.

First ACCC action

The first major action by the ACCC related to the threats by the AWU to go on strike in support of the MUA. As stated above, the AWU had threatened to close down the Australian oil industry by going on strike in all refineries and off shore oil rigs.

The ACCC responded to the threat from the AWU by writing a very threatening letter advising them that the ACCC would take immediate legal action against the union if it went ahead with its threat. Indeed, we explained to the AWU that their conduct would have been a clear contravention of section 45DA which prohibits secondary boycotts which substantially lessen competition. Section 45DA carried a maximum penalty of $10 million per contravention. 

We told the AWU in no uncertain terms that if they went ahead with their threat the ACCC would commence legal proceedings against them seeking the maximum penalties available under the TPA.

The AWU backed down very quickly. Indeed, I think AWU wanted to save face by stating publicly that they would make good their threat if they were asked to by either the MUA or the ACTU. In reality, the AWU must have realised that if the ACCC had taken legal proceedings against them we would have won the case and the financial costs arising from the case would have most probably have destroyed the union.

We were fairly happy with ourselves for having averted the threatened closure of the Australian oil industry by the AWU. Indeed, this became a major focus of the ACCC’s activities over the next few weeks – trying to prevent the dispute from spreading by stopping other unions from taking sympathy action in other industries in support of the MUA.

---

[1] “International action may see ships boycotted”, Australian Financial Review, 9 April 1998, p. 7.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 4 - The Sacking

Part 4: The Sacking

Industry Warning

One thing I almost forgot to mention was that a few months prior to Corrigan sacking his MUA workers, the ACCC issued a general warning to the entire industry to abide by the TPA. In the ACCC’s media release, dated 5 February 1998, it stated[1]:

ACCC waterfront investigations

The Australian Competition and Consumer Commission has warned all participants in the waterfront and shipping industries of their obligations to comply with the provisions of the Trade Practices Act.

"The ACCC is monitoring behaviour in these sectors", ACCC Chairman Professor Allan Fels said today, speaking at an industry conference on compliance with the law in Sydney.

"The ACCC is ready to act in the public interest to enforce the primary and secondary boycott provisions of the Trade Practices Act, if necessary.

"Section 45D of the Act prohibits boycotts which have the purpose, and would have or be likely to have the effect of, causing substantial loss or damage, a substantial lessening of competition or preventing or substantially hindering trade or commerce," he said. "Section 45E prohibits contracts, arrangements or understandings which have the purpose of preventing or hindering the supply or acquisition of goods or services. Section 45 prohibits anti-competitive agreements generally.

"The ACCC has been monitoring events at Webb Dock and has had contact with major players. In the current circumstances there is potential for persons or organisations involved in the industry to engage in activity, especially boycott activity, which may breach the Act.

"In particular, members of the industry should be aware of the law, especially the above provisions, and, for example, avoid: involving themselves in the unlawful withdrawal of services to a ship or stevedore; unlawfully inducing other persons or organisations not to supply goods or services to a ship or stevedore; or unlawfully hindering the transport of goods to and from ports where any of these actions are in breach of sections 45D and E or any other provisions of the Act.

"The ACCC will enforce the boycott provisions of the Act in the same manner as it would enforce the Act against other anti-competitive practices.

"The ACCC is continuing its investigations of other waterfront issues including hold-cleaning demands, the existence of alleged exclusionary agreements between shippers, terminal operators and employee organisations, and some other matters.

"Whilst the ACCC investigates complaints from industry, it is worth noting that whether or not it receives complaints the ACCC can independently initiate investigations into breaches of the Act. A prerequisite for legal action, however, is market information and evidence. Industry participants who are concerned at breaches of the Act can bring forward such information and evidence to the ACCC on a confidential basis or any other basis, and the ACCC will consider whether it provides grounds for legal action.

"The ACCC also has power under Section 155 of the Act to require, where it believes that there may have been a contravention of the Act, persons or organisations to provide documents or other evidence or to answer questions that would assist the ACCC in determining whether there have been any breaches of the law."

The idea behind this media release had been to make it clear to all participants that the ACCC would not hesitate to enforce the relevant laws if there was a contravention. We also wanted to make it clear that we were looking at the conduct of both businesses and unions.

The media release was also aimed at letting potential witnesses know that the ACCC could compel them to provide evidence in the event there were reluctant to do so voluntarily. Even at this early stage, it was apparent to us that many potential witnesses did not want to be seen to be assisting the ACCC. However, if we served them with a section 155 Notice they could claim they had been forced to assist the ACCC against their will.

The ACCC was criticised by a number of groups for this media release, including the Labor opposition, which saw the media release as an attempt to intimidate the MUA. In reality, the media release was a naïve and misguided attempt by the ACCC to keep a lid on tensions on the waterfront.

The Sacking

At 11pm on Tuesday, 7 April 1998, Chris Corrigan sacked his 1400 MUA employees.

When I came into work on the Wednesday morning, the general feeling was one of considerable surprise. Nobody that I was working with on waterfront matters had any idea that Corrigan was going to take this extreme step.

In hindsight, there certainly were many warning signs that this action was about to take place. I immediately recalled an article which had appeared in The Age only a few days before. This article had quoted a PCS trainee, Mr Jamie Meek, who claimed that his Webb Dock instructors had told him that Patrick was going to sack its workforce on Easter Tuesday.[2] Admittedly, his prediction had been out by a week, but it turned out to be surprisingly accurate.

During the course of the day, more details of what had happened the night before emerged.

First, there were reports that Corrigan had given Peter Reith advance warning of his decision to sack his MUA workforce.

Second, it also became apparent that there had been a great deal of forward planning by Corrigan. The logistics of coordinating a lockout of 1400 MUA employees simultaneously at 17 different locations around Australia was not something that anybody could have organised overnight. Furthermore, Chubb Security had been hired to facilitate the removal of the MUA and to secure the worksites. This would have required considerable lead-times.

It was apparent that Corrigan had been planning the sacking for many weeks.

ACCC’s first actions

The ACCC realised that it had to work out what we should do in response to the sacking. It was obvious that the waterfront was going to explode and that would need to be in a position to take action.

The first thing the ACCC did was make my waterfront team the full time waterfront investigation team. My three-person waterfront /mergers and asset sales team was now officially the full time waterfront investigation team!

The second thing we did was organise selected ACCC staff around the country to observe the picket lines. We decided to do this by nominating two ACCC staff members from each ACCC office whose role it would be to observe local developments, namely the conduct of the picket lines. In most cases, we selected the regional director in each office and one other person.

However, these officers were not to become part of the Waterfront team – ie they were not called on to collect evidence or assist in the preparation of the any potential litigation in the longer term. Rather their role was to assist the Waterfront team on an ad hoc basis, which turned out to be limited to the first couple of weeks after the sacking. The role of carrying out the investigation and preparing any potential litigation remained the responsibility of three-person Waterfront Team and its legal team. Indeed, the core Waterfront Team throughout the entire dispute never got larger than three people.

However, a key decision maker during the Waterfront Dispute was Luke Woodward, the General Counsel of the ACCC at that time.

The third thing we did was increase the size of our legal team. The ACCC decided to use the Australian Government Solicitor as its lawyers on the case. The members of the Waterfront team had enjoyed a very good relationship with a number of the AGS lawyers, so they seemed like the logical choice. 

We also immediately retained a number of barristers to assist in the matter. Prior to the sackings, the ACCC had been using one barrister to assist it on the hold cleaning case, namely a Queensland silk by the name of George Brandis QC. However, staff were never entirely comfortable with Mr Brandis as they had not selected him in the first place and had never worked with him before.

When the sackings happened, the team decided that it would not be appropriate to continue using Mr Brandis because of his lengthy and apparently quite close relationship with the Liberal Party. The Waterfront team wanted to avoid any perception that the ACCC was involved with the Howard Government in any way. Accordingly, even though I am sure Mr Brandis would have done a competent job, the ACCC never used him on the waterfront case again.

The ACCC decided to retain a brilliant barrister, Mr Peter Comans, as the key legal advisor in the investigation and in any future litigation. The ACCC had used Peter quite extensively in the past and we had a very high opinion of his legal knowledge and technical skills. However, the quality which I liked most about Peter was his creativity. Given that the ACCC was now embroiled in a unique situation and dealing with legislation which was largely untested (or in the case of section 45DB entirely untested) we knew that we needed a barrister who was highly creative. We knew that in the circumstances we would not be able to rely on traditional investigation and litigation strategies, particularly traditional approaches to evidence gathering.

We also retained a junior barrister, David Godwin, because of his extensive knowledge and experience in industrial relations laws. We did not want to make the mistake of only using lawyers who knew a great deal about the TPA but were ignorant of industrial laws and the way the Workplace Relations Act worked. David proved invaluable in explaining to the team the industrial relations issues which arose in relation to Corrigan’s conduct in sacking his MUA workforce.

Over the course of the dispute, we hired a number of other barristers to assist us including:

• John Trew QC (an industrial relations silk); 

• Richard Tracey QC (now Justice Tracey of the Federal Court); 

• Stephen Gaegler, SC (the current Commonwealth Solicitor General); and

• Simon White.

Observing the picket lines

The initial role of our handpicked ACCC observers was to attend various waterfront locations and simply observe what was happening. These staff then were to prepare reports which formed the basis of briefings for the Chairman, Commissioners and senior management.

Being typical investigators, these ACCC staff could not just simply attend the picket lines and anonymously observe events. Rather most of them could not resist the temptation of getting heavily involved. Most of them, on arriving at the picket line, immediately sought out the person in charge of the picket line, introduced themselves as an ACCC officer and explained that they were there to observe the picket lines. In the circumstances, this was a very audacious thing to do, as ACCC were highly unpopular with the MUA.

In fact, the ACCC had the unfortunate distinction of being unpopular with all of the major protagonists in the dispute. The union movement did not like the ACCC because they believed that the ACCC should stay out of the dispute. Corrigan and the Howard Government did not like the ACCC because they believed we did not intervene in the dispute quickly enough. I had a feeling we must be doing our job right if both sides were unhappy with our approach.

Emotions running high

It is important, in order to fully appreciate later events, to have some understanding of how high emotions were running during the Waterfront Dispute.

A good example of how inflammatory the situation was can be gained from the following incident. Jennie George, the then President of the ACTU, was addressing a few hundred sacked MUA workers at Port Botany the day after the sacking. She reportedly shouted the following “fighting words” to the assembled audience:

I couldn’t believe it, when I woke at 5am, to hear that blackshirts, dogs on chains, had been used (to clear workers off the docks). Is this Australia or is it Nazi Germany?

These statements were quite representative of the way that many people in the union movement, including senior members of the ACTU, spoke about Corrigan’s actions at the time. There were many references to “Nazi Germany”, “Hitler”, “storm troopers” and “the blackshirts”.

I found such comments to be reprehensible at the time and I still do. These comments had the inevitable effect of whipping up MUA members and their supporters into an absolute frenzy of hatred towards anybody behind the picket line or anybody trying to get through the picket line. This hatred often spilled over to anybody who was not clearly “with the picketers”, including ACCC staff.

The popular image presented in the media about the Waterfront Dispute was generally that Corrigan’s security personal were violent thugs and that the MUA and its supporters were the peaceful and innocent victims. I cannot agree with this characterisation.

I witnessed the wholesale destruction of buses full of non-union labour in Port Botany by out of control picket lines while the police stood idly by. I also had to dodge rocks thrown at me by MUA supporters simply because I was on the wrong side of a picket line. I had to escape from Port Botany by helicopter because it was simply too dangerous to try to leave the port by the public road because of rampaging picket lines. Indeed, on one occasion I, an AGS lawyer and a poor unfortunate taxi driver came within seconds of being set upon by a few hundred picketers in Melbourne when we were again caught on the wrong side of a picket line.

The reality is that in most of the ports, Corrigan had between 15 – 30 staff behind the picket lines consisting almost entirely of security personnel. On the other hand, the picket lines had often more than 1000 picketers shouting insults, throwing stones at anybody behind the picket, and trying to push over perimeter fences to try to get at those inside.

The picketers also had a practice of trying to take photos of the people inside the picket lines and then trying to identify these people by name. If they were successful in identifying one of the people behind the picket line, they would shout out the following threats the next time they saw that person:

“We know who you are and where you live.”

Picketers shouted this threat at me on a few occasions. However, I was not too worried, as I strongly doubted they did in fact know who I was or where I lived.

There is a very simple reason why the security guards wore balaclavas - it was because they were terrified that the MUA may identify them and subsequently take reprisal action against them.

I do not blame the individual MUA picketers or their supporters for all the violence, fear and destruction. Rather, I blame the leadership on both sides of the dispute for cynically using the events to pursue their own selfish aims. By doing so these leaders put the safety of thousands of people at risk, including unionists, non-union workers, security personnel, members of the general public, police officers as well as a handful of ACCC staff.

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[1] “ACCC waterfront investigations” ACCC News Release, dated 5 February 1998 - http://www.accc.gov.au/content/index.phtml/itemId/87384/fromItemId/378006

[2] “Young and rural, is this the wharves’ new face?”, The Age, News Extra, 4 April 1998, p. 5.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 3 - Prelude to the Sacking

Part 3: Prelude to the Sacking

Introduction

Prior to discussing the events of April 1998, it is necessary to provide some relevant background.

There was great deal happening on the waterfront in late 1997 and early 1998. The general feel at the time was that the Howard Government was trying to encourage the two major stevedores to take on the MUA.

Prior to the decision by Chris Corrigan to sack his entire MUA labour force in April 1998, there had been three significant events which I will discuss in some detail – the Cairns dispute, the Dubai trainees incident and the Webb Dock hand over. The combined effect of these three events was to create a strong presentiment that something major was going to happen very soon.

Cairns dispute

The first skirmish started in Cairns on 13 September 1997. This dispute involved the decision by a small shipping agent, International Purveyors, to terminate its stevedoring contract with the MUA and to use non-union labour instead. The stevedoring contract was very small in the scheme of things – namely, to load one vessel, the MV Java Sea, with supplies for Freeport in Irian Jaya or West Papua.

The MUA responded to this decision by setting up a picket line with the intention of stopping the MV Java Sea from berthing.

On seeing the media reports, the ACCC’s Waterfront Team immediately commenced an investigation of the conduct. These media reports were the first that the ACCC had heard about the dispute. After looking at the matter, we formed the view that any breach of the TPA would only occur once the MV Java Sea actually berthed and was prevented from loading supplies. We believed that this conduct would breach section 45DB of the TPA. Prior to that event, the picket would not have interfered with international trade and as such would not have constituted a breach of section 45DB.

The Waterfront Team worked extensively with the Chairman, Commissioners and General Counsel on drafting a letter to the MUA. The aim of our letter was to warn the MUA not to do what it was proposing to do – namely, to boycott the MV Java Sea when it berthed. I doubt I have ever spent as much time in my entire career in trying to finalise a simple two-page letter. However, the length of time we spent on this letter was an indication that we recognised, even at this early stage, that the MUA was not the type of organisation to whom the ACCC could make idle threats. We knew that if we were going to make any threats to the MUA about their proposed conduct our threat had to be credible.

Unbeknown to the ACCC, the MUA had decided to take an entirely different approach to this dispute than just organising a traditional domestic boycott. As explaining in detail in Helen Trinca and Anne Davies’ book Waterfront: The Battle that Changed Australia (Waterfront), the MUA had been focused on trying to reverse the decision made by International Purveyors to cease using MUA labour. The MUA sought to do this by placing pressure on International Shipholding Inc., the owner of the MV Java Sea.

Waterfront recounts how Mr Trevor Charles the local representative of the International Transport Workers Federation had been trying to contact International Shipholding Inc to convince the company to intervene in the matter. It has subsequently been reported that the MUA and ITF made it clear to International Shipholding Inc. that unless it did its best to convince the relevant parties to rehire the MUA stevedores in Cairns its entire fleet could become the target of a global boycott.

Apparently, the ship owner agreed to intervene by contacting Freeport, the ultimate customer, to convince them to reverse their agent’s decision to use non-MUA labour.

The ACCC did not know all these details. All the ACCC knew was that the owner of the MV Java had intervened in some way and that the MUA stevedoring contract had been reinstated.

It is quite embarrassing to admit that the ACCC was entirely unaware of what was happening in the background to this dispute.

In addition, we had not anticipated that the MUA would go off shore to try to influence the course of the dispute. We had expected that they would have continued their domestic boycott until the MV Java Sea arrived.

After this matter resolved on 18 September 1997 (a mere five days after it had started) the Waterfront team carefully considered what had just occurred. We realised that while we had not done anything of any significance, except spend an enormous amount of time on a two-page letter, we had learnt a number of important things, including a number of important things about the way the MUA operated.

First, it seemed to us that everybody else knew a lot more about what was happening on the waterfront than we did. It was clear to us that Peter Reith’s office knew a great deal more than the ACCC about this particular dispute. However, we were not actually able to confirm our suspicions about Peter Reith’s role, until we read about what had happened in the Waterfront book a few years later.

Second, we realised that we needed a strategy in the future to deal with any MUA conduct which occurred overseas. We needed to know whether the ACCC could take action against the MUA under the TPA for offshore conduct. We also had to work out a strategy as to how to get the evidence to prove such an “offshore” breach.

Third, time was going to be a more significant problem than we had anticipated. This entire dispute had only lasted five days. To collect evidence and launch a case in this time frame was almost impossible unless we took a radically different approach to our investigation and litigation.

Dubai trainees incident

The Dubai dispute was a very strange event. In early December 1997, stories started appearing in the Australian media that a band of former Australian soldiers were being trained in Dubai as part of a plot to take over the Australian waterfront and oust the MUA. As you can imagine, we did not believe these reports when they first appeared as the entire scenario seemed much too farfetched.

From what we could understand at the time, various parties had funded a band of former Australian soldiers to go to Dubai to receive training on the operation of stevedoring equipment. We also understood that these individuals would be returning to Australia once they had received their training to become stevedores. Everyone suspected that Corrigan would end up employing these individuals.

On becoming aware of this latest plan, the MUA immediately moved offshore. The MUA effectively sought to put pressure on the Dubai government to prevent these individuals from getting training in Dubai. It was also reported that the MUA had involved the head of the ITF, Mr David Cockcroft in its discussions with the Dubai government.

In mid-December 1997, the ACCC heard that the Dubai government had withdrawn the visas for these individuals so that they had to leave the without getting any stevedoring training.

The ACCC’s Waterfront team did not really know what to make of this entire event. One thing we did know at the time was that the MUA’s activities in Dubai did not contravene the TPA. The MUA and ITF had pressured the Dubai government to cancel these individuals’ visas so they could not receive training in Dubai. This conduct did not breach either section 45D or 45DB of the TPA.

Accordingly, the ACCC never wrote a letter to the MUA about this particular incident. However, we again learnt a number of valuable lessons from having been a passive witness to these strange events.

First, we understood that the MUA was likely to call on the ITF in any dispute. This was a significant development, as it suggested to us that the MUA might be able to protect itself from the TPA by seeking to mobilise overseas groups to act on its behalf.

Second, I remember being very impressed by way the MUA had dealt with this issue. Not only had they moved with lightening speed but they had also been able to identify and exploit the weakest spot in the strategy being employed against them. The MUA immediately saw that their best approach was to target the Dubai government and put maximum pressure on them to stay out of the dispute.

Finally, we now focused a great deal of our research on finding out more about the ITF. We discovered that the ITF was an international trade union body which represented the interests of a large number of local trade union organisations in the transport area. One of its most active members was the MUA.

The aims of the ITW were set out in its Constitution as follows:

• to promote respect for trade union and human rights worldwide

• to work for peace based on social justice and economic progress

• to help its affiliated unions defend the interests of their members

• to provide research and information services to its affiliates

• to provide general assistance to transport workers in difficulty

However, another significant activity of the ITF was to coordinate “protest messages, demonstrations and political pressure, to direct industrial action in the form of strikes, boycotts etc” in relation to local labour disputes.

After looking into the ITF organisation in more detail at a later stage we were able to establish that it had structured itself in such a way that it would be effectively immune from liability to pay penalties or damages in the event it was sued for breaching or facilitating a breach of boycott laws.

Having said this we were also able to establish that the ITF’s power was derived entirely from the power of its local union affiliates in their home countries. For example, the ITF had a great deal of power in Australia because the MUA had a great deal of power here. The only other place where it appeared that the ITF had considerable industrial power on the waterfront was on the West Coast of United States due to the industrial power of the International Longshore and Warehouse Union (ILWU).

Finally, we came to the clear realisation that nobody was keeping the ACCC in the loop on developments. We were not being told anything by the Department of Workplace Relations about what was going on, nor was Chris Corrigan providing us with any information. The irony was that when we went to interview potential witnesses, they seemed to think we knew all the details of the broader “plan” and that we were a part of this “plan”.

In hindsight, it was much better that we did not know about the broader “plan”. While it was quite embarrassing to be regularly unaware of the behind-the-scenes machinations of the Government and Corrigan, the ACCC would have been placed in a very difficult position had it know about this plan. In fact, the MUA would have probably joined the ACCC in its conspiracy action against Corrigan and the Howard Government had we actually been in the loop.

Webb Dock handover

The third and final event relates to the decision by Patrick in January 1998 to lease Webb Dock No 5 in Melbourne to a new company called Producers and Consumers Stevedores (PCS). Like the Dubai fiasco, details of this plan were again leaked to the MUA and the media before the actual handover of the site had been carried out.

When details emerged about PCS, it became apparent that it had been set up by the National Farmers Federation and Don McGauchie. Also, included in its ranks were a number of the individuals who had been part of the failed Dubai training exercise.

After looking into the matter, the Waterfront team formed the view that the PCS operation appeared to be little more than a training operation. In other words, PCS was planning to train various non-MUA individuals to be stevedores. We fully expected that the MUA would be focusing on preventing these individuals from getting employment as stevedores after they have been trained. However, for the moment it appeared that the MUA intended to maintain only a watching brief.

It also seemed to us that the MUA were desperately trying not to engage in any conduct which may constitute a boycott. Even though the MUA did have a picket line at Webb Dock, it did not actually prevent the passage of individuals or vehicles onto the premises, although some buses got pretty smashed up on the occasions that they drove through the picket lines. We were satisfied that while there was the occasional stoush between the MUA and the PCS employees as vehicles went through the picket line, that generally the MUA were doing their best to avoid engaging in an illegal boycott.

Office of Employment Advocate

The final issue which is relevant to understanding subsequent events relates to the anticipated role of the Office of the Employment Advocate (OEA).

The OEA was set up by Peter Reith in 1997 to enforce the Workplace Relations Act 1997 (WRA). The OEA had jurisdiction to enforce a range of the provisions of the WRA, including the Freedom of Association provisions. These provisions made it an offence for an employer to dismiss an employee because he or she was, or was not, a member of a union.

I remember attending a talk given by Peter Reith prior to the Waterfront Dispute (we were given some free tickets). In his talk, Mr Reith made no secret of the fact that something had to change on the waterfront. He also made it abundantly clear that any attempt by the MUA to prevent such a change would most likely lead to the union having problems under the Freedom of Association provisions of the WRA. In other words, if the MUA tried to take action to prevent somebody using non-MUA union labour on the wharves, the OEA's role was to ensure that that didn't happen. Furthermore, he made it clear that the Commonwealth Government agency which would be keeping the MUA on the straight and narrow would be the OEA. I do not recall Reith referring to the ACCC once during his talk.

I came away from Reith’s talk with the distinct (and pleasing) impression that it would be the OEA, rather than the ACCC, who would be at the forefront of any action against the MUA in what seemed to be the inevitable dispute. I also got the strong impression that the ACCC was not seen by the government as the agency which was feted to take the lead role in any action against the MUA. This probably explained why the ACCC seemed to know so little about what was going on in relation to Cairns, Dubai and Webb Dock.

I was very relieved after hearing Reith’s speech. While I did not like some of the MUA’s conduct, particularly hold cleaning, I empathized with other MUA campaigns such as their campaign against flags of convenience vessels. I had also seen enough of the MUA in action to respect their skills in dealing with disputes and to acknowledge their consummate ability to play the media. While the MUA was not the largest union, it seemed to me to be the smartest and most disciplined union, with a very strong leader in John Coombs.

However, I was also not entirely convinced that the OEA, as such a new agency, would be up to the challenge of “taking on” the MUA. This is precisely what happened when the dispute broke out - the OEA immediately jumped ship, leaving the enforcement field entirely to the ACCC.