Larvatus Prodeo

8 Responses to “Ten years since the Waterfront dispute II”

1. 1 DeLiCa
   Apr 8th, 2008 at 2:36 pm

   It might have taken the better part of 10 years of maintained rage for the Waterfront War to take Howard’s scalp, and for Greg Combet to enter Parliament as part of an ALP government; but it marked the beginning of an Industrial Relations War which eventually led to Howard’s inglorious loss of office and seat. Drink to that, all you heroes who showed that, however long it takes, “The People, united, will never be defeated”.

2. 2 amused
   Apr 8th, 2008 at 5:32 pm

   It also took the better part of ten years to get most unions to face the real nature of the problem. The gloves came off in 1998, but the ground rules for the new dispensation were set by the Workplace Relations Act 1996, whose provisons were hardly noticed by a sleepy and out of touch union movement. The truth is that the government engineered the whole dipsute, with the assistance of a piece of industrial flotsam and jetsam who is and was known to a number of people in the union movement as a political operative masquerading as a ‘provider of industrial services’.

   This person boasted to myself and another person, about the approximate time it would all happen. He could hardly contain his glee at his own cleverness.

   The original game plan was to try and engineer a general stoppage, or at least a stoppage in a number of industries, that would be immediately injuncted via the provisions of the Workplace Relations Act 1996.

   It was hoped that the resulting legal losses, costs, defeat and recriminations would be enough to ‘defang’ the usual suspects permanently, and reduce the rest to pliant irrelevancy for long enough so that removal of effective unions de jure would hardly be noticed.

   The rest is history, but the real story is the smarts that were displayed by the union movement in not being provoked by the plan, whose outline in detail was well known beforehand, but not of course, the time it would be delivered, and the arrogance of Howard in stating, publicly, that the purpose of the sackings was to ensure that union members no longer worked on the wharves! The fact that the old ‘New Guarder’ did not even know the provisions of his own legislation (Part XA -Freedom of Association) shows just how visceral and illiberal the layer he represents in the Liberal Party really is, and just how insouciant the right in this counry, and elsewhere had become.

   This was a confident and ruthless exercise of state power, not by means of legislative action, but by way of a Cabinet decision to break the laws passed by Parliament.

   Well, it is good to know that civil disobedience is not confined to the usual suspects, but is warmly embraced by the political representatives of battlers like Rio Tinto, Corrigan and the rest.

   Excellent. We are all liberals now it seems.

3. 3 Peter Kemp
   Apr 8th, 2008 at 7:02 pm

   What was also fascinating was the legal efforts behind the scenes, the team of lawyers who worked their collective butts off. Unbelievable tactical skills, perception, analysis, which outmanouvered Darth Reith and his bovver boys for a splendid result.

   As Julian Burnside wrote:
   http://www.users.bigpond.com/burnside/creative.htm

   As an example of the pressures of the case, on the night of Thursday, 23 April, the Full Federal Court dismissed Patrick’s appeal against the judgment of North J. At 10 o’clock that night, the High Court stayed the orders of the Full Court and announced that the High Court would hear Patrick’s appeal in Canberra on the following Monday. On the morning of Friday, 24 April, Hayne J. directed that Patrick’s outline of argument be delivered to us on Saturday and that our outline in response should be delivered to Patricks and the Court on Sunday afternoon. Although, in form, Patrick’s application was for special leave to appeal, Hayne J. warned the parties that the hearing on Monday may be regarded as the appeal itself. Those of you who are experienced in running High Court appeals will appreciate the exhilaration of preparing the appeal and filing the papers during the course of a single weekend….

   As Australia awoke to the morning news on Wednesday, 8th April, 1998, they learned that Patricks had sacked its entire waterfront workforce during the course of the night and that masked guards were now in control of the wharves. They had, it seemed, done one of the things which we were seeking to have the Court restrain them from doing.

   In Court that morning, we learned that administrators had been appointed to the labour-supply companies, because labour supply agreements had been breached. None of us understood the reference to labour-supply companies; none of us had ever heard of the labour supply agreements. Patricks argued that we were not entitled to proceed in litigation against companies under administration; they argued that it was too late for the Court to do anything. We all sensed that we had fallen into an abyss, and all around was dark.

   But there was one ray of hope. Courts are very astute to see that their authority is not nullified by sharp practice. In those rare cases where litigants have tried to forestall the judgment of the Court, Courts have acted decisively in restoring the position that existed before the Defendant’s precipitate action. We found a case where the Plaintiff issued a motion to restrain his neighbour from continuing to build a wall between their properties in such a way that it would deprive him of his light. Whilst the motion was pending, the Defendant engaging extra workers and completed the wall overnight. When the Court learnt of this, it ordered that the building work which had been done after the issue of the motion should be taken down pending trial. This was very similar to our own case. Patricks had tried to forestall the decision of the Court on the injunction application by acting quickly. For a short time, we were gratified that at least they had not disposed of their assets as well. It was another three days before we learned that the labour-supply companies had disposed of their assets 6 months earlier.

   As it turned out, the Patrick labour-supply companies had not sacked their workers. What they had done was to move their operations into different companies the previous September, so that the labour-supply companies had nothing but a workforce and a contract to supply that workforce to other entities. On the night of the 7th April, what they had done was to terminate the labour supply agreement, which left the workforce with no work to do; it looked very much like a sacking. But technically, the workers were still employed by the labour-supply companies, even though they had no work to do.

   North J. granted an injunction until the Wednesday after Easter to restrain the labour supply companies from dismissing the employees. This was crucial, since the prospects of having the employees reinstated would have been extremely bleak, given the position the companies were then in. During Easter, the team worked like people possessed to put together a new Statement of Claim which accommodated the facts which had so recently and dramatically come to light. The pressure of circumstances effectively guaranteed that the Statement of Claim would be confined to the central matters in dispute; we resisted the temptation to proliferate causes of action. Added to this, we were driven by a sense of outrage which was shared by most Australians.

   There is a further aspect of the MUA case which showed real creativity. You will readily appreciate that the mood amongst the sacked unionists was not good. They had a profound and legitimate sense of grievance. The union leaders, notably John Coombes of the MUA and Greg Combet of the ACTU showed remarkable skill in restraining the response of the disaffected workers. This was strikingly illustrated in at least two instances.

   First, when the first injunction hearing came on and it emerged that administrators had been appointed to the labour-supply companies, it was immediately obvious that it would be very helpful if the Applicants could give an undertaking to avoid the risk that the administrators would be personally liable for their wages. Under the Corporations Law, administrators are personally liable for debts incurred by them. It was clear that there was no work for the employees to do, and yet we sought an injunction to keep them on the payroll. There was no immediate prospect that the Patricks operating companies would pay anything to the labour-supply companies. Without the employees undertaking that they would not look to the administrators for payment, the balance of convenience would very likely tip against the grant of an injunction.[note: the ‘balance of convenience’ is the golden rule in injunction actions PK] The union organisers very quickly appreciated the force of this proposition, and very quickly gave instructions to give the undertaking. It was a remarkable performance.

   Second, on the evening of 23 April 1998 the whole of Australia watched as Wilcox J. delivered the judgment of the Full Court live-to-air on television. So intense had interest become that all stations continued the broadcast through 7 o’clock, thus interrupting their ordinary programming. The workers had then been shut out for over two weeks. Their jubilation on hearing the result was tremendous. There was a universal sense of relief and exultation that two Courts had now said that they could go back to work.

   Within a few hours, however, Hayne J granted a temporary stay of the Full Court orders, pending an application for special leave to appeal to the High Court. This was a sharp disappointment which dashed the hopes of hundreds of workers who had been locked out of their workplace in such dramatic circumstances. There was a real and serious risk that they would react violently. Many thousands of supporters had gathered at the wharves in support of the workers; the potential for serious civil unrest was enormous. Again, the union leaders managed to maintain order despite the high emotions of the occasion. Again, it was a remarkable performance..

   Sorry for the long quote, but the story behind the scenes is not widely understood, nor the skills exhibited by the legal team. This defence of unions is unparalleled in recent history, but illustrates how the skids can be put under smarty pants corporate thuggishness.

4. 4 Mark
   Apr 8th, 2008 at 8:08 pm

   Absolutely, Peter, and more power to those folks. But if employment law hadn’t been so rotten in the first place courtesy of the Howard government, the dispute would never have taken the form it did and should have been resolvable without superhuman efforts and highly expensive and protracted legal action.

5. 5 Adrien
   Apr 8th, 2008 at 8:19 pm

   “The People, united, will never be defeated”.

   I have a feeling that humanity will’ve progressed to previously unscaled heights at some time in the future when such slogans are no longer chanted.
   >
   For all sorts of reasons.

6. 6 GregM
   Apr 8th, 2008 at 8:41 pm

   But what was the outcome of the waterfront dispute when the dust had settled:

   The MUA and Patrick negotiated a new work agreement, which was adopted by the company and workers in June 1998. The agreement specified a near-halving of the permanent workforce through voluntary redundancies, the casualisation and contracting out of some jobs, smaller work crews, longer regular hours, company control over rostering, and productivity bonuses for faster loading. While the union retained the ability to represent maritime workers, the company achieved significant changes to work practices as it desired. Workplace Relations Minister Peter Reith stated at the time “There appears to be a number of reforms which will satisfy the seven benchmark objectives which is very important.”[3]

   The non-union workers who had been employed to break the union were dumped by their employer at the conclusion of the dispute. Many members of this non-union group claimed they were still owed thousands of dollars in unpaid wages, and successfully sought payment of these unpaid wages through the courts. The original Fynwest men walked away with bonuses and commissions of around $50,000.00 each on cancellation of their contracts.

   http://en.wikipedia.org/wiki/1998_Australian_waterfront_dispute#Resolution

   And Chris Corrigan walked away with a $250 million profit from his little expedition into union busting. He got everything he wanted.

   Oh, and of course, farmers can now get their produce off the wharves and to the export markets they depend on for their income without having to run the gauntlet of the whims of the MUA monopolists who previously controlled the wharves.

   A great story in Australian industrial relations which can only be compared with the 1989 pilots’ strike, in which Bob Hawke led the charge to get rid of another group of monopolists.

7. 7 Graham Bell
   Apr 9th, 2008 at 7:28 am

   Mark and all:

   One way or another, the whole of Australia was adversely affected by this costly, unnecessary, ideology-driven dispute.

   For instance: Trying to train soldiers “on leave” or whatever as strike-breaking wharfies in Dubai – then throwing them to the wolves – not only did harm to prestige of the Australian Defence Force but it was also one of the many factors that contributed to the crash of ADF recruiting.

   This was an issue that went way below the radar of journalists, lawyers and all the other prominent players in that game.

   Word-of-mouth is a powerful thing. Regardless of the facts of the issue, time and again, what happened to those soldiers was used as an example to young people of why they would have to be stupid to join the ADF. “Go on, you idiot. Join the Army – and they’ll turn you into scab labour too and then they’ll dump you”.

8. 8 Fine
   Apr 9th, 2008 at 9:42 am

   Absolutely Graham Bell. The Department of Defence was horrified that the armed forces were being dragged into an industrial dispute. They were very worried about what the result might be for them if it became violent.

   I remember Reith in television very well, complaining about how much money wharfies earned. They could make 60, 70 grand. God forbid that a blue collar worker should make a decent living. That’s only for stockbrokers and shonky lawyers.

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