Troops as Strikebreakers: Use of the Defence Force in Industrial Action Situations


Current Issues Brief 3 1996-97

Gary Brown
Foreign Affairs, Defence and Trade Group
1 September 1997

Contents

Introduction

Former ADF industrial action planning: Plan CABRIOLE

Nature and purpose of Plan CABRIOLE
Weapons and the use of force in Plan CABRIOLE

Lessons from CABRIOLE

Use of the ADF to achieve domestic politico/economic goals

Defence Force Objectives

The 1989 Pilots' Dispute: How Good a Precedent?

Potential Problems Confronting the ADF

Conclusions: outstanding questions

Endnotes

Annex: Australian Joint Service Plan CABRIOLE (full text-hard copy version only)

Introduction

The use of Australian Defence Force (ADF) personnel in industrial action situations is not new in Australia, but has always been infrequent and controversial.(1) Defence Force involvement in these situations poses a number of difficult, possibly even dangerous, problems for Government, employers, trade unions (including the Australian Council of Trade Unions-the ACTU) and not least for the ADF itself. This possibility again came to the fore following media claims that the Government has developed secret plans to put ADF personnel onto the waterfront in order to push through workplace microeconomic reforms and industrial relations changes which it considers necessary.(2) Though this particular report has been denied, the prospect of using the Defence Force in industrial action situations raises a number of significant issues.

Whatever underlies current reports, it is certainly true that under the Fraser Coalition Government (1975-83) the Defence Force developed a classified plan for use of the ADF to maintain 'essential services' adversely affected by industrial action. Plan CABRIOLE- which was cancelled, declassified and released by the then Minister for Defence (Mr Beazley) in 1986 - included the possibility that troops might be used on the wharves. While it is not suggested that the detailed concepts and approaches used in Plan CABRIOLE would necessarily be taken over by any contemporary ADF planning along these lines, the plan does offer some indication of the issues with which the Defence Force and Government must deal if ever troops are to be employed in this way. In particular, examination of the plan highlights issues connected with the use of force by Defence Force elements in industrial action situations.

This paper, which is a revised version of one originally issued in 1991, considers issues raised by Plan CABRIOLE in the context of recent media reports.

Former ADF industrial action planning: Plan CABRIOLE

Notwithstanding its use on several occasions since 1945 in industrial action situations, the ADF has generally been unprepared for such activity. Since World War II, it has had only one contingency plan-Joint Service Plan CABRIOLE-for such eventualities, and CABRIOLE was drawn up only in 1982 and cancelled by Government in 1986.(3) Thus the Defence Force interventions in the 1981 QANTAS strike and the 1989-90 pilots' strike were both undertaken in direct response to Government decisions and with little or no prior planning.

Though concerned with industrial action situations, former Plan CABRIOLE would not entirely suit any current plans to employ the Defence Force on the wharves. This is so because CABRIOLE was concerned primarily with maintenance of essential services, and specifically not (para 1) with forcing a resolution to the industrial dispute. But CABRIOLE still provides useful insights into the way the ADF might approach some future industrial action situations if required by Government to intervene. For this reason, it will be discussed in some detail, and a copy of the plan is attached to the hard copy version of this paper.

Nature and purpose of Plan CABRIOLE

CABRIOLE was essentially a planning framework intended to minimise lead times(4) for Defence Force response to situations in which essential services were adversely affected by industrial action. While operative, the plan enabled Headquarters ADF (HQADF) to tell the Government at short notice what the Forces could, and could not, do with respect to a range of essential services, including the wharves. But CABRIOLE had several questionable features which suggest that the real-life implications of using the ADF in this way had not been fully drawn out, and pointing strongly to the conclusion that more comprehensive analysis will be required if ever the ADF is to be used where industrial action is involved.

CABRIOLE sought to put to rest some of the more lurid possibilities which tend to surround discussions of 'sending in the troops' to replace strikers in industrial disputes. The plan included a blanket prohibition (para 23) on the carrying of weapons by ADF personnel involved in maintenance of essential services. Nonetheless, there was a provision (para 18) that ADF members retained the right of self-defence in accord with the doctrine of minimum necessary force (on which see below); but CABRIOLE sought to avoid the contingency by placing responsibility for provision of safe access to sites and protection of ADF property and personnel squarely on the shoulders of the civilian police. If the police could not provide necessary protection then under CABRIOLE's provisions the ADF element would not be employed or, if already in place, would be withdrawn (para 5).

ADF involvement in 'non-defence' situations is not a new issue and there are Defence guidelines and instructions for at least two such types of activity-Defence Force aid to the civil power (DFACP) and Defence Force assistance to the civil community (DFACC). Aid to the civil power is defined as assistance 'where there is any possibility that force may be required to be used by Defence personnel'; while assistance to the civil community is activity 'where there is no likelihood that Defence personnel will be required to use force.'(5)

Questioned in 1986, Defence Minister Beazley said that CABRIOLE relied on a methodology similar to that for ADF 'assistance to the civil community'.(6) On the face of it, maintaining essential services certainly seems more closely related to DFACC than to 'aid to the civil power'. But this involves an implicit assumption-namely, that assistance to the community will be welcomed and facilitated at the point of delivery. In many industrial action situations, and perhaps particularly on the waterfront, this assumption is likely to be false. Protection and security will almost certainly be needed, and this requirement raises a number of difficult issues for the Defence Force.

By stressing civil police protection for ADF members, the military planners who drew up CABRIOLE clearly intended that the ADF not be involved in using force against civilians. If laws were being broken, it would be a police matter to enforce them. Nevertheless - as will be shown below-aspects of the plan still carried an implication that ADF members might use force, and not only for personal self-defence. The self-characterisation of CABRIOLE in its para 4 as a type of 'assistance to the civil community' is thus open to question.

In fact, CABRIOLE and the type of Defence Force activity it presupposed fit uneasily into either category. While the plan's objective was of the 'assistance' type, in the implicit means of achieving its aim, means which did not entirely preclude the use of force, it was closer to 'aid to the civil power' than anything else. The difficulties apparent in making CABRIOLE fit the accepted definitional structure for these types of activity serve to emphasise the extent to which the initiators of the plan were entering uncharted territory.(7)

Weapons and the use of force in Plan CABRIOLE

Nowhere is this more apparent than in CABRIOLE's treatment of the critical questions of weapons and the use of force by ADF members. The unequivocal prohibition on carriage of weapons (para 23) sought to dispose in advance of some of the more sensational possibilities. Even so, CABRIOLE exhibited uncertainty, even inconsistency, in its approach to the question of use of physical force by ADF members.

CABRIOLE's preferred position was one where the ADF confined itself strictly to the provision of an essential service while the civilian police guaranteed ADF access to the sites and the security of personnel and equipment. The plan included an entirely reasonable provision for minimum force in personal self-defence by ADF members. Where the concept encountered difficulties was the provision (para 19) for use of minimum force in defence of 'materiel, whether Defence Force property or not, which is being used in the maintenance of essential services to the community'.

This provision had the potential to draw unarmed ADF personnel into direct confrontation with pickets or strikers by imposing on the Defence Force a duty to protect inter alia the civilian plant or facility which it was attempting to operate. This widening of the ADF responsibility contradicted in spirit, if not in the letter, the stipulation in para 5 of the plan that the ADF element would not deploy, or would be withdrawn, if the civilian authorities could not provide access to sites and protection to ADF personnel and equipment, and contradicted as well the clearly stated 'non-violent' qualification (para 6) to the mission of Plan CABRIOLE.(8)

Such ambiguous planning opens up a range of possibilities, many of them potentially very serious, for the ADF. A worst-case scenario could have a situation in which unionists, the police and the ADF all became involved with different objectives: the unionists to keep the service shut down; the police to provide access and protect ADF personnel and all equipment necessary to the service; and the ADF simultaneously to operate the service, practise self-defence and defend plant or equipment. In these circumstances also, the ADF commander on the spot might have to decide whether to withdraw under para 5 of CABRIOLE because civil police protection was insufficient. At the same time, a withdrawal might result in the non-provision of services and/or damage to civilian property, which para 19 of CABRIOLE requires the ADF to protect. So much uncertainty in the plan did not bode well for its efficient execution, particularly when the uncertainty was centred on such delicate and difficult matters as the use of force and allocation of responsibility for the protection of relevant civilian property.

Lessons from CABRIOLE

Functioning waterfronts are economically essential, but at what point in a dispute would ADF involvement be necessary? A short strike, or the imposition of bans and limitations, might restrict waterfront output without shutting it off entirely. Intelligent union strategists might exempt certain classes of 'essential' goods in the interests of retaining public sympathy. And in any event it would take time for waterfront shutdowns to threaten the delivery of goods and services to the people, or to cause significant stand-downs in industry. Until serious effects were felt, it might be hard to justify calling in the military.

Joint Service Plan CABRIOLE represented an unusual excursion by the ADF into the field of industrial disputation and politics. Given the unfamiliarity of this territory, it should not be surprising that CABRIOLE revealed a degree of political innocence or naivety on the part of its drafters. While on paper it appears reasonable to state that the objective of CABRIOLE was 'to minimise hardship to members of the public-NOT to provide an enforced resolution of the dispute'(9), the chances of an embattled trade union or the ACTU seeing matters that way are remote in the real world. Like it or not, if the ADF moved in and took over a service shut down because of industrial action it would almost certainly be perceived as strike-breaking by a significant section of the community and all those involved on the union side. Claims of nobler motives would be brushed aside as political 'cover stories' and most probably the dispute would escalate further as unions sought to render ineffective any ADF efforts.

Similarly, the desire 'to avoid unnecessary provocation in what could be a sensitive situation'(10) shows considerable ignorance of the realities of industrial disputes, particularly those which have escalated steeply enough for military involvement to be a serious option. The contradictions already noted in CABRIOLE about the use of force appear to represent two related but contrary lines of Defence Force thought: one, the desire to leave all coercion to the police and get on with the job in hand; the other, to permit self-defence and try to protect essential material, whether ADF or not, necessary for performance of the task. Clearly the former line is sound policy for the Defence Force, but whether it would be tenable in practice is at the least debatable.

Plan CABRIOLE thus highlights some dangers and difficulties associated with tasking the ADF in areas beyond its traditional responsibilities, and especially in areas with high political content. CABRIOLE had the potential to brand the Defence Force as being on 'one side' in the employer-employee contest which is so fundamental a feature of Australian society and, indeed, possibly to identify the ADF as the ultimate enforcement arm for one political party's agenda.

The central questions raised by Plan CABRIOLE and indeed by any consideration of using the Defence Force to achieve economic goals are first, whether or not it is appropriate so to employ the ADF and, if it is, under what conditions and obeying what rules?

Use of the ADF to achieve domestic politico/economic goals

Defence Force Objectives

The ADF has clearly defined and specific objectives. These are spelt out in the 1997-98 Defence Portfolio Budget Statement as follows:

The most fundamental responsibility of Government is to provide for the defence of Australia, its people and its interests. This is reflected in the Mission of the Defence Organisation:

To promote the Security of Australia, and to Protect its People and Interests.(11)

In the light of this clear mission, it will be readily apparent that use of the military to achieve other goals - as in industrial action situations-can at best be considered a peripheral activity.

There are, to be sure, a wide range of activities which could similarly be characterised as 'peripheral' to the core ADF objectives quoted above, including many 'assistance to the civil community' activities. The Defence Force was not raised to fight bushfires or rescue floodbound people, but is regularly and uncontroversially employed on such tasks.

The critical point in considering ADF involvement, however, is that civil assistance activities would enjoy the broad approval of the population and the active cooperation of people at the point of delivery. There would be no organised resistance to Defence Force activity in such cases. But this is much less likely in the midst of a major industrial dispute. Where the Defence Force involvement is non-controversial and welcome, routinely the case in 'assistance to the civil community', the favourable prospects for success at least do not militate against ADF involvement in activities which, nevertheless, remain peripheral to the Forces' main tasks.

The 1989 Pilots' Dispute: How Good a Precedent?

Plan CABRIOLE was cancelled by the Labor Government in 1986. Thus, when the domestic airlines were grounded in August 1989 by pilots taking industrial action in support of pay rises outside the then accepted wage fixation guidelines (the pilots later resigned their jobs en masse), the ADF had no plan in place for response to Government directions to provide civilian transport until the airlines rebuilt themselves with new pilots.

The success of the Defence Force involvement in this dispute (Operation IMMUNE) is well known; the ADF contribution to the pilots' eventual defeat was of major significance. But it is appropriate to consider whether this sets a viable general precedent for ADF involvement in other industrial disputes. Several factors suggest that it does not.

Perhaps chief among these was the almost complete isolation of the Australian Federation of Air Pilots (AFAP) from the vast majority of the union movement and the people. For a variety of reasons, the AFAP could not count on effective support from the ACTU, from other unions in the air transport industry, from any Trades Hall Council or indeed from the people. It was the 'maverick' status of the AFAP-notably wage demands widely seen as excessive and a stubborn refusal to accept the constraints agreed to by most unions under the rubric of 'the wage fixing guidelines' - which led the bulk of the industrial labour movement to leave the AFAP to its fate. Perhaps only the former Builders' Labourers' Federation (BLF) in recent years has been so isolated from the mainstream union movement and thus so vulnerable. The Pilots' Federation, by embarking on a campaign of bluff, escalation and counter-bluff without mainstream support, sealed its own fate and made Defence Force intervention against it tolerable, if not entirely popular, for unions generally, and politically possible for a Labor Government. And, of course, there was no suggestion of the use of armed force.

Mention has already been made of the generally unfavourable nature of the AFAP's physical situation, especially after its members resigned their jobs. This meant that they were isolated from their former workplaces and had no real chance of hindering the ADF, even had they wanted.

Thus, use of the Defence Force in circumstances where the target union-for whatever reasons-lacks effective support from other unions and the ACTU, and its members can be physically isolated from the workplace, has a fair prospect of success. Equally, however, it follows that use of the ADF in industrial action situations where the target union has mainstream support, including that of the ACTU, and where the workforce retains access to the workplace, has no precedent in the 1989 pilots' strike.

Potential Problems Confronting the ADF

Depending on the type of industrial action, active hostility at the delivery point may or may not constitute a problem. But a situation very different to the pilots' strike could well emerge if the Army were moved onto the waterfront to enforce disputed or controversial Government microeconomic reforms or industrial relations policy. There, the striking workforce is likely be present in strength and, most probably, unwilling to give the ADF access to the workplace. Other unions may be involved in 'sympathy', either directly or via the ACTU. Therefore, the possibility that force will be required to give the ADF access to the wharves and to maintain a safe and secure working environment for the troops cannot be excluded.

Given the integrated nature of economic activity, there is a possibility that demands on the ADF might rapidly escalate. For example, even if securing and operating wharves with the ADF is feasible, this does not guarantee delivery of goods from wharves to warehousers and eventually retailers. Transportation workers might refuse to handle goods off a military-run waterfront; there might then be pressure for the ADF to provide land transport as well. If the dispute escalated (perhaps as a union response to the use of troops), more services might be targeted by unions than the ADF has resources to support. Such escalatory spirals, well known to military strategists, can run out of control, so that an action intended to protect one essential service may at the end of the day result in the loss of others.

The ADF recognises the inherent right to self-defence of a member threatened with physical attack. In such circumstances the member is expected to use the minimum force necessary for effective self-defence. This doctrine of 'the minimum necessary force' has, because of its inherent reasonableness, been generalised to apply to a wide range of circumstances: as noted, it appeared in Plan CABRIOLE. But the prospect of unionists and ADF members coming to blows on the waterfront would, if realised, certainly put to the test Defence Force training of personnel in the practical application of the minimum necessary force doctrine.

Although the most relevant current ADF document, Defence Instruction (General) OPS 01-1, Defence Force Aid to the Civil Power (DFACP)-Policy and Procedures, is classified, some indication of the ADF position can be gleaned from a supplement to an unclassified paper. This paper, Australian Defence Force Publication 6, Supplement 2, Land Operations, exists in a 1996 draft and includes the following observations:

Occasionally, land forces will be required to provide support to the civil power in law enforcement activities. Law enforcement tasks are the responsibility of the Commonwealth, State and Territory law enforcement authorities. However, situations may arise in which aid from the ADF is sought in support of the measures undertaken by the Commonwealth and State governments. This form of support is known as Defence Force Aid to the Civil Power and varies from small scale support in the form of specialist capabilities to deployments of military units on law enforcement operations...

Where there is any likelihood that members of the land force will be required to use force, aid is only permitted by order of the Governor-General in Council. In all such cases, the use of soldiers will be subject to the primacy of the civil power, be permitted to use only minimum force and will remain under military command.(12)

These observations are accurate. The Defence Act (s.51) provides that, if a State Government requests it, the Governor-General can proclaim that domestic violence exists in that State and call out the Defence Force to assist in dealing with the problem. It is noteworthy that s.51 of the Act specifically prohibits the use of the Reserve Forces in connexion with an industrial dispute, so that only Regulars could be used in such cases.

Presumably any attempt to enforce new industrial relations laws on the waterfront by means of troops would be seen by the Defence Force as 'aid to the civil power' and be managed accordingly. The classification of the relevant Defence Instruction, however, precludes detailed analysis at this point.

Conclusions: outstanding questions

Thus a number of questions, some few foreshadowed in the preceding discussion of Plan CABRIOLE, will need to be addressed by any policy envisaging use of the ADF as an instrument, even in the last resort, of Government microeconomic and industrial relations policy. Among these questions are:

  • If the civilian police cannot maintain order, will the Defence Force be required to do so under 'aid to the civil power' procedures, or under some other procedure or new legislation?
  • Will the Defence Force be required to protect property and equipment-eg, loading/unloading cranes-if the police cannot?
  • Will troops be authorised to use force (exclusive of weapons) to protect themselves, the police, or equipment?
  • If the police are outmatched, will any troops be charged with protecting the wharves and their comrades working there, and would they then be issued with weapons?
  • Would troops obey an order to fire on unarmed civilians?
  • Could action by unions in support of their waterfront colleagues create further demands on the ADF for provision of services and, if so, could there be an escalatory spiral sucking the ADF ever deeper into a national industrial relations confrontation?
  • To what extent can the Defence Force be diverted from its central national security functions onto industrial relations activities without compromising its core capacity and mission?
  • If worst came to worst and serious violence, perhaps with fatalities, broke out, could ADF involvement compromise its perceived neutrality and impartiality in Australian domestic affairs? What effects would this have on longer-term ADF relations with the community?

These questions can only be posed; they cannot be answered in advance of the event. But it can be said with some confidence that there are a number of very important issues and problems-notably those connected with the use of force by ADF members-which Government and Defence Force planners will need to address most carefully before the ADF is used on the waterfront, if this course were ever adopted. The risks of error in this area, with its hair-trigger sensitivities and pitfalls, are so great that a cautious and thorough approach to the subject seems warranted.

Endnotes

  1. Cases include use of troops during the 1949 miner's strike; use of troops at Bowen (Qld) during a mining dispute in 1953; use of the Air Force during industrial action that grounded commercial flights between Australia and New Zealand (1981) and most recently, Operation IMMUNE-the Defence Force action during the 1989-90 pilots' dispute. Readers interested in he strictly legal issues surrounding this kind of ADF activity should obtain a copy of a paper entitled Call Out the Troops, by Elizabeth Ward, to be reissued by the Parliamentary Library owards the end of September 1997.
  2. Pamela Williams, 'Coalition's secret plan to break the docks union', Australian Financial Review, 15 August 1997.
  3. The absence of other ADF contingency plans is attested in the Answer to House of Representatives Question No.3991 (Hansard, 19 August 1986, p.171.) Development of CABRIOLE began in 1979, but was not finalised until 1982.
  4. Lead time' is defence jargon for the time which must elapse from the moment a decision is made to do something (acquire an equipment, undertake an operation) until the decision can be put into practical effect.
  5. Both definitions are taken from Defence Instruction (Operations) 05-1, Defence Assistance to the Civil Community Policy and Procedures, issued on 12 February 1993. The Instruction governing Aid to the Civil Power, where force may be used, is classified, though earlier versions are available on the public record. As discussed in the body of the present paper, some ndications of present ADF policy can also be garnered from current unclassified material.
  6. Hansard (House), 19 August 1986, pp.66-7, Answer to Question No.3743.
  7. Answering Parliamentary questions about CABRIOLE, Minister Beazley said that the plan was drawn up in the period of the Fraser Government (it is dated 1982), but went on to say that the plan was not drawn up on the orders of that Government but on the initiative of the military staff in Department of Defence (Central Office). (See Answer to House of Representatives Question No.3743, Hansard, 19 August 1986.)
  8. The stated mission was to be carried out '...in circumstances not involving the use of force by the Defence Force.' (Emphasis added).
  9. CABRIOLE para 1 (emphasis in the original).
  10. CABRIOLE, para 3.
  11. Department of Defence, Portfolio Budget Statements 1997-98, p.5.
  12. Department of Defence, Australian Defence Force Publication (Operations Series), ADFP 6, Supplement 2, Land Operations (Draft), November 1996, paras 706 and 708.

Annex: Australian Joint Service Plan CABRIOLE

(declassified, full text-hard copy version of this paper; not available on Internet).