ACTU President Jennie George discusses the conservative governments’ approach to industrial relations during the 1998 Waterfront Dispute.

Introduction

You have probably read and heard about the significant dispute on the Waterfront in Australia. At the time of writing it appears likely that an industrial settlement will be reached between the parties.

 

This is a remarkable achievement and due to the strength of conviction displayed by the MUA and its members and the strong support from the rest of the union movement and community groups.

 

The disciplined and effective industrial strategy centering on the successful pickets, in combination with victories in the legal arena, helped turn public opinion against the conspiracy engineered between the Government and the company, Patrick Stevedores. It was never about ‘productivity’ on the waterfront, but about union busting.

 

The dispute sheds light on the Conservative Governments approach to industrial relations in this country.

 

It is an approach which reflects the logical end point of their changes to industrial relations laws.

 

These are based on four key objectives:-

 

1. no role for Industrial Relations Commission;

2. weakening the influence of unions;

3. seeking to replace collective bargaining with individual contracts; and

4. a greatly weakened award system.

 

In addition, what was notable in this dispute was the Government’s preparedness to be totally partisan in its approach.

 

As Terry M^cCrann, a conservative economics writer in the “Melbourne Herald Sun” commented:-

 

“Reith personally and as the responsible minister not simply condoned and encouraged but actually participated in” the processes that were undertaken by Patricks.

 

Finally, the nature of those actions, including their illegality, also represents a fundamental change in how industrial relations have generally been conducted in this country.

 

Let me go to each of these points.

The Industrial Relations Commission

The most notable change is of course the absence of any role for the Industrial Relations Commission, the traditional umpire.

 

In fact Patricks, on the advice of, and encouraged by, the Minister, Peter Reith, had deliberately arranged its affairs to ensure the Industrial Relations Commission could play no role.

 

In his judgement in the Federal Court Mr Justice North quoted from a briefing paper prepared for the minister for a meeting on the 12^th of March 1997.

This states (recommends) “stevedores would need to activate well-prepared strategies to dismiss their workforce, and replace them with another, quickly, in a way that limited the prospect of, for example, the Commission ordering reinstatement of the current workforce.”

 

It is unprecedented that we could have an industrial dispute of such enormous dimensions with the Industrial Relations Commission, the traditional umpire, not having any role in achieving a settlement.

 

Instead we have seen the parties seeking recourse to other jurisdictions – the Federal Court and State Supreme Courts and the High Court. This reflects the Government’s antagonism to the practical, dispute settling role of the Commission.

 

This deliberate trend of keeping the Commission out of disputes and allowing them to run their full destructive course is fundamentally damaging to workplace harmony as well as, most importantly, the national interest.

 

Tom Burton in the “Financial Review” commenting on the dispute noted:

 

“The other big implication is for the new industrial order the Federal Government has been seeking to impose after 90 years of a system run and controlled by a central conciliation and arbitration body. If there is an obvious point to emerge from the past fortnight it is the inappropriateness of the law courts, as opposed to industrial tribunals, for sorting through the myriad interests that come to bear in the adjudication of workplace relations.”

As this dispute progressed more people appreciated the need for an independent tribunal capable of maintaining workplace peace and workplace justice.

Weakening The Influence Of Unions

When the Workplace Relations Act came in, the Howard Government insisted that it was not about weakening union power but rather about giving freedom of choice to workers as to whether they should be union members.

 

The Act however, contains a range of measures designed to make life difficult for unions.

 

In this current dispute the Government has made no secret of its objective of weakening the power of the Maritime Union of Australia.

 

The March departmental briefing note to Peter Reith that Mr Justice North referred to stated clearly that the goal being pursued was “for the MUA’s influence on the waterfront to be significantly weakened.”

 

So this dispute was not about waterfront reform. It was an attack on a union and unionism in general.

 

Many media commentators have acknowledged this.

 

As Laurie Oakes of the “Bulletin” said:-

 

“The Government has never been interested in genuine talks with the MUA about improving productivity on the waterfront …

 

The aim was to create a public issue where the Government could be seen to defeat the MUA …

 

‘It was all about provoking a shitfight with the wharfies’…”

 

And Shaun Carney in “The Age” wrote:

 

“the real motivation behind the war on the Maritime Union [is] this Government sees itself understandably as the standard bearer for business people … the source of 20th century unionism was the waterfront and before the century was out this Government wanted to kill unionism at its source.”

 

The Patrick employees were sacked because they were union members. The Prime Minister John Howard said so on ‘A Current Affair’ on 9 April 1998. Asked why the workers in Adelaide and other highly productive ports had been sacked, Mr Howard said “Well they are all part of the one union.”

 

That is why this dispute assumed such importance for all union members.

 

If the Government and an employer could do this to the waterside workers, no union and no union member could be safe from victimisation and discrimination.

 

This reason alone was at the heart of the widespread support for the MUA from all sections of the movement.

Collective Agreements – v – Individual Contracts

Hand-in-hand with the Government’s desire to weaken unions is its desire to replace collective bargaining with individual contracts. (A.W.A’s)

 

The Workplace Relations Act provided for Australian Workplace Agreements to be an option for workers if they so chose.

 

That is the rhetoric – the reality is somewhat different.

 

In practice, this Government wants to see individual contracts replace collective bargaining.

 

The ACTU is aware of numerous instances whence workers have been forced on to AWA’s.

 

This often occurs in the context of changed employment structures. For example, in the privatised rail companies we have seen workers retrenched one day and offered new employment with new companies on the next day provided they accept AWA’s.

 

In many instances we don’t get to hear when workers are told to accept an AWA or forget about the job. But anecdotal evidence is clear that this is the real choice many workers – especially in small non-unionised workplaces – face.

 

These AWA’s of course contain greatly reduced conditions – especially regarding rostering, hours of work and penalty rates.

Weakened Award Systems

This is happening on top of an award system which the Government is seeking to have whittled down to the barest framework of minimum standards which it hopes will have only minimal relevance in the real world.

 

This is being achieved through the review of all awards currently taking place to ensure they deal only with “allowable” matters.

 

The Government is taking a highly interventionist role in these proceedings across all awards – seeking the removal of a whole range of award conditions some of which are not opposed by the employers party to the award.

Partisanship Of The Federal Government

This Government was completely partisan in the dispute. It actively provoked the dispute.

 

Let me provide you with a few examples of what it did:

 

 

 

• Through 1996 and 1997 the Government paid out over a million dollars to conservative consultants for reports on the waterfront.

 

 

 

• The reports have never been made public despite requests made in the Parliament.

 

 

 

• In September 1997 Government Ministers Reith and Sharp and their departments met with the National Farmers Federation in relation to a new stevedore entering the waterfront

 

 

 

• In October 1997 we saw the failed Dubai fiasco, which involved hiring “industrial mercenaries” including serving defence force personnel to go to Dubai to train as waterside workers.

 

 

 

• In January 1998 we then had the leasing by Patrick of Webb Dock to the National Farmers’ Federation – the base of the alternate non union workforce.

 

 

All of this culminated with the action of the Company, supported by the Government, on the 7th of April 1998 when we saw the sacking of Patrick’s entire workforce in the dead of night.

 

The way the sackings were implemented was extraordinary and certainly a change from normal corporate behaviour.

 

We saw crane drivers being pulled out of their machines in mid shift and surrounded by savage dogs and security guards.

 

It was a shameful act and horrified most Australians.

 

Even more horrifying to many was the sight of Prime Minister Howard and Minister Reith’s back-slapping performance in the Parliament about how clever they had been in promoting this action by the company.

 

What makes it worse again is the company reorganisation that had been undertaken by Patrick as far back as September 1997. This ensured that its employees were employed by subsidiary companies that were at the time of the sackings insolvent.

 

This means that the workers, having been sacked in this extreme way, were also left with at least one week’s wages owing to them as well as all annual and long service leave and redundancy entitlements.

 

Frank Costigan, QC, has compared Patrick’s behaviour to the bottom of the harbour schemes which he helped to expose in the 1980’s. He wrote:

 

“The behaviour of Patrick in relation to its reorganisation of its corporate structure deserves the strongest condemnation.

 

Whatever the courts may decide about the legality of such conduct it is, in my view, as unacceptable for a company to shift assets around between subsidiaries, and to strip assets from those particular subsidiaries which are likely to be faced with claims from employees and creditors, as it was for companies to bury their assets in the harbour to avoid the payment of tax.

 

It is a matter of great concern that the tools of financial and corporate reorganisation are used to put at risk the legitimate claims of creditors and employees.

 

It is almost beyond belief that such endeavours attracted the applause of the Government.”

Conclusion

Is this to be the general direction of industrial relations in this country – is this the future? I think not.

 

I think the Australian community will not let that happen. Certainly the early signs are encouraging.

 

As Mr. Costigan QC stated:

 

“The events surrounding the late night sacking of the workers, enforced by security guards and dogs, and the asset stripping of the employing companies, constitute an example of financial, corporate and industrial misbehaviour which is unacceptable in this country. It is for the courts to determine its legality.

 

For my part I am bound to declare that it is offensive to ordinary concepts of decent behaviour. It is the responsibility of the Australian Government to take appropriate steps to make certain it cannot happen again.”

 

Recent opinion polls would indicate the community is opposed to the new type of industrial relations favoured by Mr. Corrigan and Mr. Reith. Opinion polls shows a continuing drop in support for the Coalition Government. This is certainly promising.

 

The widespread union support reflected the concern of all workers about the vulnerability of their own employment arrangements.

 

The ACTU’s legal advice concluded that if the business arrangements made by Patricks “were to become prevalent” they would “represent a fundamental threat to the job security of Australian workers generally.”

 

These shonky business arrangements included:

 

 

• turning the company employing the workers into a labour hire company;

 

 

 

• with a contract which permitted the major company to cancel the labour hire agreement so as to in effect sack the workforce (this insulates the major company from claims such as unlawful dismissal or award breaches);

 

 

 

• stripping the company employing the workers of all assets (this means that company cannot meet redundancies and other obligations).

 

 

Our lawyers have said “In our opinion the existing legal protections are not adequate to provide proper redress for workers confronted with arrangements of the kind described.”

 

This is an issue which has been energetically pursued by the Labor Party.

 

In an environment where employees are feeling increasingly vulnerable and insecure, this waterside dispute is of fundamental importance to the future of industrial relations in this country.

 

The great loser has been the Minister and the Conservative Government.

 

I believe the Australian community will reject the methods adopted by Patricks and the Government, and hopefully this will be reflected in the coming Federal election.

 

The MUA will continue to present the industrial interests of the waterfront workforce. Far from breaking the union and ending its so called “monopoly”, the Governments actions have given a great impetus to the union movement generally.

 

ACTU President, Jennie George