Wrong Way---Go Back
The Power of Militant Unions---A Culture of Intimidation
Mr. President, Ladies and Gentlemen:
Thank you for the invitation to speak to you tonight. Your Society's foremost objective is:
To support the reform of Australian Industrial Relations with the aim of promoting the rule of law in respect of employers and employee organisations alike
I think that I shall be able to illustrate to you in the following how readily I can identify with this very simple, logical and equitable philosophy. During my more than twenty years as Chief Executive Officer of Columbus Line in Australia which were almost throughout accompanied by attacks from a particular union I found our existing system sadly wanting in this respect.
My first exposure to the industrial inequities prevailing downunder occurred when I was relegated to the colonies a.k.a. Auckland, New Zealand in 1960. In my meanderings as an aspiring shipping executive I had had the opportunity of acquainting myself with conditions on the waterfront in Europe, the UK, South America, the Orient and lately the United States from where I had been transferred. The environment in North America was far from ideal. Many of you may remember the movie "On the Waterfront" with Marlon Brando.
However, the conditions and attitudes encountered in New Zealand added to the original cultural shock. New Zealand is favoured by nature in that it gets a lot of rain all year round. We had started a shipping service to the West Coast of North America intending to carry frozen meat, after the import of this commodity from South America had been halted following the outbreak of foot and mouth disease. Now it was a mouth-watering situation seeing the rains come down and gradually being transformed into nice square cartons of frozen beef which we could carry in our ships. However, there was the question of getting them into the ship, when the wharfies would disappear from the scene at the first few drops.
In Seattle, Washington, which experiences a similar level of rainfall some clever fellow had invented what is called the Seattle Tent. This is a tarpaulin affair which is rigged over the ships gear and even frozen cargo can be discharged under its shelter into an adjacent cold store in moderate rain. In New Zealand a major part of the cargo also came out of adjacent cold stores, so I purchased a Seattle Tent and asked our stevedores to utilise it. They were quite prepared to do this, but the wharfies were asking for double pay, reasoning that they got paid for rain delays anyway. We caved in. In the end, the method was abandoned, however, because nobody else was prepared to do it and the operation was constantly boycotted by labour who produced evidence that rain might still enter from the sides.
On moving to Australia in 1961 I made some futile attempts of introducing my beloved Seattle Tent but soon gave up after having been told on good authority that there would be no chance of having the Arbitration Commission amend the Industrial Award. I am citing this example as only one of an endless list of constant frustrations. It appeared as though labour was intent on throwing a spanner in the works in every phase of waterfront operations. In fact, it is obvious from some of the waterfront folklore that much of this occurred out of sheer frivolity, a desire to twist the lion's---the employer's---tail and oftentimes was the cause of great merriment amongst the troops.
Having been conditioned for ten years, however, did not prepare me for what was to come from another corner of the industrial movement in 1972. Columbus Line had introduced its first three container vessels, which by virtue of enormous capital investment was going to nullify much of the frustration of the Australian waterfront. As a courtesy to the countries we served and as a mark of our commitment the vessels were named COLUMBUS AMERICA, COLUMBUS AUSTRALIA and COLUMBUS NEW ZEALAND. The ships were flying the German flag and were manned with German nationals and a small contingent of seamen which had been trained by us in the Gilbert Islands in conjunction with the British Colonial Office and the United Nations.
In early July 1972 I received the visit of what turned out to be three most unsavoury characters in the personae of Eliot V. Elliott, Federal Secretary and Patrick Geraghty, Assistant Federal Secretary of the Seamen's Union of Australia together with Bill (Pincher) Martin, President of the New Zealand Seamen's Union. All three were, and the two still alive probably are, avowed communists. In an interview with the industrial publisher Pat Huntley Elliott stated:
I believe in the overthrow of capitalism---and I'm doing everything I can to weaken it. Take the union Jack. It makes me sick to look at it. If I had my way, we would have a red flag with the symbol of the Southern Cross in the corner.
The three rogues explained as the reason for their visit that the COLUMBUS AUSTRALIA would have to be manned with an Australian crew and the COLUMBUS NEW ZEALAND with a New Zealand crew. They would leave it to us whether we wanted to man the COLUMBUS AMERICA with citizens of the United States. All this would have to be done without delay. As motives for their approach they advanced a number of spurious arguments, amongst them that they wanted to protect Australian jobs and the balance of invisible payments.
Elliott also indicated that our operation would be dislocated failing a prompt compliance on our part. This eventuated pretty soon. The Seamen's' Union denied the supply of tugs on four different occasions between 2nd August and 21st October at Melbourne and Brisbane for periods of up to 48 hours. As we had no way to determine the length of the delays we attempted to tranship containers from and to Sydney but this was blockaded by the union. We had no access to the industrial tribunal because we had no employer/employee relationship with our attackers.
We had discussions with the Ministers of Labour and National Service and the Minister for Primary Industry and also advised Prime Minister McMahon of these incidents asking for their assistance. The Prime Minister replied on July 18
I refer to your telegram of 7 July reporting demands by the Australian Seamen's Union that one Columbus Line container vessel should be manned by Australian personnel under Australian conditions and rates of pay.
The Government views with concern the prospect of disruption of Australia's important export trade to the East Coast of the United States of America.
You are no doubt aware the Government has encouraged increased Australian flag participation in a number of overseas trades but the Government clearly recognises the legitimate role of efficient overseas shipping companies such as your own in continuing to service our export trade.
Commonwealth and State industrial legislation provide specific recourse to an industrial tribunal to employers faced with the threat of direct industrial action which seeks to force compliance with union demands.
I am informed that if industrial action is taken against your Company, it is likely to come about because of refusal of maritime unions to provide tug and mooring services to Columbus Line vessels.
In the event that maritime unions refused to provide tug and mooring services to the Columbus Line it would be open for tug operators to refer the matter to an industrial tribunal.
Tug operators upon request confirmed that they had contractual agreements with us under the United Kingdom Standard Towage conditions, but pointed out that these agreements lapsed in case of disputes or labour disturbances.
Naturally, we thoroughly investigated all legal aspects of the problem, but other than the tort provisions of common law there seemed to be no avenue open to us. Common law proceedings would have to be initiated in the State Courts, where the unions then could comply in one state and attack us in another. The only federally effective mechanism was section 30K of the Commonwealth Crimes Act (1914) which, amongst a number of other misdemeanours makes it an offence, punishable by one year's imprisonment to obstruct or hinder the transport of goods or the conveyance of passengers in trade or commerce with other countries or amongst States.
Our lawyers strongly advised against embarking on this course. So did Tony Street, the very able Assistant Minister to Labour and National Service Minister Philip Lynch and so did the Department of Labour and National Service.
However, other than trying the cumbersome and by no means assured path of suing the unions for tort in various State Courts there did not seem to be anything else open to us. The German Ambassador in Canberra suggested that we talk to Bob Hawke, and as they knew each other reasonably well, arranged for an appointment.
The president of Columbus Line travelled here from Germany and together we met Hawke in his office on 25th October 1972. We discussed the possible consequences of proceedings under the Crimes Act. Hawke ventured that everything would stop and we declared that, as far as we were concerned, everything was about to stop anyway. Subsequently, Hawke spoke to Elliott on the telephone in our presence and told him to "call off his dogs". Hawke suggested to us that we should find a face-saving formula together with Elliott. As a result, we invited a union delegation to Germany to discuss the issues with German unions and Government entities, which was accepted but never followed up.
The ensuing peace lasted for more than ten years until the demise of the Fraser Government early 1983. Elliott had departed to his communist heaven and Patrick Geraghty had stepped into his position. To show his mettle he renewed the attacks, however, we had now at our disposal one of the more commendable legacies of the conservative period in the shape of the anti-boycott provisions of the Trade Practices Act.
After we had successfully fended off the first stoppage in March 1983 the seamen's union established what they called a picket line outside our office in 333 George Street in Sydney. This was, in fact, not a picket line but a demonstration which lasted until shortly before my retirement in 1991. At times, this was an extremely noisy affair with loudhailers being used and the entrance to the building surrounded by numerous characters holding up placards. These variously accused my principals of taking jobs away from Australians, pirating Australian cargo and undermining the balance of trade. Through various Government channels we were urged not to use the Trade Practices Act but nobody offered alternative suggestions other than "talk to the unions". Official Canberra remained silent.
We kept battling on, repeatedly countering dislocations caused by the seamen's union by successfully applying for injunctions under the Trade Practices Act in the Federal Court. We refined the process by instructing every staff member to meticulously record as diary notes any and all discussions they had with persons likely to become involved at any time as witnesses or defendants. Word-processing enabled the production of varieties of affidavits at a moment's notice.
Having obviously recognised that he would not get very far with Columbus Line, Geraghty spread his interference to shipping lines operating in the South East Asia Trade, ostensibly because of the threatened withdrawal of the Australian National Line vessel AUSTRALIAN ENTERPRISE. This led in July 1984 to 120 foreign flag vessels being held up in Australian ports. As some of the affected lines were about to start injunction proceedings the Transport Minister, Peter Morris conjured up various meetings, chaired initially by the retired General Secretary of the Waterside Workers' Federation, Charlie Fitzgibbon and later by the ACTU Industrial Officer Ian Court. These resulted in the lines trading to South East Asia being coerced with the connivance of Government into a shabby so-called accord forcing them to guarantee a share of cargo to ANL. We were pressured to take part in these meetings despite not being involved in this particular trade.
Earlier in the year the 1983 ACTU Congress had passed a unanimous resolution demanding:
- Repeal of a variety of legal sanctions that may be used against unions.
- Repeal of penal sanctions in the Conciliation and Arbitration Act.
- Repeal of sections 45D and 45E of the Trade Practices Act.
- Repeal of Common Law Industrial Tort legislation.
- Repeal of sections 30J and 30K of the Commonwealth Crimes Act.
On February 21 1984 Gareth Evans, the Attorney General and Ralph Willis, the Minister for Industrial Relations, jointly released a green paper proposing the repeal of the anti-boycott provisions which in the end they succeeded in doing. It is quite obvious that this was part of the price paid to the industrial movement during the accord negotiations.
The provisions were still on the books, however, in April 1985. Volumes of correspondence had gone between our office and the Ministers in Canberra with us being constantly beseeched not to use the Trade Practices provisions. Concurrently, Peter Morris made some substantial efforts to pacify the seagoing unions by injecting or promising further funds for the Australian National Line. A meeting had also been called in Canberra, to be chaired by the Department of Transport, of a motley collection of representatives of foreign shipping lines for Monday, 29th April 1985.
On the preceding 27th April Geraghty found a further pretext to prevent one of our vessels, the COLUMBUS VICTORIA from leaving the Port of Botany Bay. The seamen's union's appendix, the Firemen & Deckhands' Union refused to supply linesmen to unmoore the vessel. The pilot, a member of the Merchant Service Guild which is the seagoing officers' union, left the vessel after it was put to him that I would let go the lines together with my wife and our operations manager. After inquiring with the harbour authorities as to what repercussions would be involved and being told that there would be a $400 fine for the master we cast off the lines. The Master was later prosecuted by the Maritime Services Board and we paid the $400.
There was a great deal of headshaking over my action at the otherwise fruitless meeting in Canberra on the following Monday. The departure of the COLUMBUS VICTORIA was followed by a ban by the Firemen and Deckhands' Union for 14 days on another of our vessels in Sydney. We informed all those parties that had urged us not to use the Trade Practices Act that we would try and get by on the basis of common law provisions. In an obvious attempt to widen the dispute the legal representative of the union made frantic efforts during these proceedings to persuade the court that this dispute rightfully belonged in the Federal Court under the Trade Practices Act.
The turmoil thus created led to an attempt by Peter Morris, under his personal chairmanship, to convene a tripartite meeting on 16th May 1985 with the seagoing unions, the ACTU and various shipowner representatives, the third party ostensibly being the Government. The president of Columbus Line proceeded to Australia when the meeting was called off because of the unions' inability to attend. During a private meeting with Willis and Morris we received no encouragement from either Minister, but were in fact asked to negotiate a compromise. We left them in no doubt that we would from now on seek out whatever legal option was available to us and confirmed this in a letter to both Ministers and the Prime Minister.
The reconvened meeting took place on 24th May and was chaired by Ralph Willis. As we had put our position clearly to the Government and since it was impossible for my Principal to once again come to Australia on short notice we declined participation but seconded our legal representative. He was promptly thrown out of the meeting at the request of the unions. Willis summed up at the end of this meeting that another such meeting would be necessary and that everyone concerned should exercise restraint in the meantime.
Undoubtedly, the seagoing unions and the ACTU had been advised by Canberra of our determination to use each and every piece of legislation available if we were to be attacked again, because their restraint lasted for a long time. We had to go to the Federal Court once again for a temporary injunction under the Trade Practices Act. Before these injunctions were made permanent we were approached with the offer of a deal by the legal representatives of the seamen's union. In return for withdrawing our action they would withdraw their so-called picket line. However, as we were not greatly inconvenienced by the latter we declined.
All these events, of course, were more complex than might appear from this summary. They created an enormous amount of files which I took home with me when I retired and subsequently culled them and compiled them in a book. One of the motives for this labour of love was my hope that others might benefit from our experiences. In retrospect I believe that we were too accommodating, because we were mesmerised by the apparent unfettered power and the unity of the union movement. Organisations which had just come out of a fierce demarcation dispute, mostly conducted to the detriment of the employer, would fraternally stand up as one against the employer.
More than a year has passed since my literary effort. We had a change of Government which reinstated the anti-boycott provisions, albeit in a somewhat watered-down version. The Workplace Relations Act may not be all it is made out to be but it is useful. The current proceedings initiated by the ACCC seem to indicate a determination on the part of Government to back up with action the tools made available, a determination which was not evident in previous conservative Governments and, of course, philosophical anathema for Labor. However, even under those adverse circumstances our own tenacity, mainly brought about by the recognition that we had no alternative, was the crucial factor in resolving the various crises.
Apart from Industrial Legislation, the provisions which featured so prominently on the wish list of the 1983 ACTU congress are again or still in place. It is now necessary to achieve the resolve to use them. And it is also necessary to assuage the perception that using these tools would spell doom and disaster, because those who habitually broke the law managed to overawe the rest of the community that doom and disaster would ensue.
I am personally convinced that industrial unions have their place in modern society. What we have to deny them, however, is the reckless abuse of perceived or real power to contravene the rules and laws of modern society promulgated by a democratically elected Government. It is obvious that some powerful unions have declared war. If they choose war as a remedy they should be given all they want. But such war can only be conducted if there is unity and mutual support, because any vestige of discord will be unconditionally exploited. Industry must recognise that the established union culture and the still somewhat skewed industrial system can lead to one after the other being picked off if no effective defence is mounted.
Maybe this thought is not original but I would consider it a very useful first step for industry associations to pool their industrial relations expertise and join in setting up a competent and highly visible mutual defence organisation which is thoroughly equipped to educate its members and assist them in mounting effective legal challenges. This will require an almighty effort at persuasion. As Winston Churchill said, no one can guarantee success in war, but only deserve it. To deserve it we must be ready to employ all the economic, political, and other resources available to achieve the objects.