Steve O'Neill
Economics, Commerce and Industrial Relations Group
12 May 1998
Contents
Introduction
Legislative changes
Importance of the waterfront
Waterfront Industry Reform
Authority
Players in the waterfront industry
Waterfront reform post
WIRA
The Patrick dispute
Some implications of the dispute
Endnotes
The Coalition was elected to government in March
1996 having made commitments to the electorate to improve
efficiency and the labour market by substantially restructuring
industrial relations, particularly by offering greater choice in
many aspects of industrial relations.(1) Legislation became
effective in early 1997. One illustration of the implications of
the new legislation is the waterfront dispute which began to unfold
in January 1998.
The Government's industrial relations policy
regarded the awards and orders of the AIRC as being too
prescriptive. It sought greater freedoms for employees and
employers to set conditions and arrangements in the workplace which
best suited their needs, i.e. to be free from unwarranted
intervention of third parties such as the AIRC and unions.(2)
This paper summarises the main events of the
1998 waterfront dispute up to the High Court's decision of 4 May
1998. The context is the legislative changes operative in 1997, and
the paper reviews the Government's policy of introducing
competition into the waterfront primarily by encouraging industrial
changes available under its new industrial legislation. It looks at
the structure of port operations, although the Productivity
Commission's reports on the waterfront provides more detailed
information.(3) The paper also reviews the benefits of reform
arising from the Waterfront Industry Reform Authority (WIRA,
1989-1992), as well as subsequent negotiations which took place in
1997-98.
The paper also reviews some of the implications
of the waterfront dispute for industrial relations and those
aspects which show the new legislation having its intended effect,
particularly in limiting the spread of industrial disputes. The
paper briefly covers the dispute up to the three court judgements
which have thus far considered the termination of the Patrick
Stevedoring workforce. These judgements are considered in more
detail in the Department of the Parliamentary Library Digests of
the Stevedoring Levy (Collection) Bill 1998 and the
Stevedoring Levy (Imposition) Bill 1998.(4)
Legislative
changes
In January 1997 new federal industrial relations
legislation (the Workplace Relations and Other Legislation
Amendment Act 1996 (WROLA), took effect. This Act amends other
Acts, notably the Trade Practices Act 1974 and amends and
replaces the former Industrial Relations Act 1988 with the
Workplace Relations Act 1996 (WRA). In many respects the
WRA is a departure from the procedural conduct governing industrial
relations. Some of its provisions augment the trend set in the
Industrial Relations Act of limiting access to arbitral functions
performed by the AIRC generally (s. 88A and s. 89), and when
parties are under a bargaining process (s. 170N).
Often the interpretation of provisions is as
important as the provision itself. The circumstances allowing the
AIRC to intervene in protracted industrial disputes were 'read
down' in a Full Bench decision of the AIRC in the coal industry
dispute at Hunter Valley No.1 mine late in 1997.(5) This decision
notwithstanding, the AIRC in Curragh had earlier
reaffirmed its authority to resolve industrial disputes under the
new Act (s. 111 and s. 113), at least when these actions did
not occur during a bargaining period.(6) So what we can say about
the new Act is that it encourages the AIRC to use its discretion
not to intervene in disputes and to use its arbitration power as an
instrument of last resort, rather than posing any blanket
restriction on arbitration.
The Trade Practices Act contains significant
penalties for industrial action such as 'sympathy' industrial
action, known as secondary boycotts. For organisations, conduct
amounting to a secondary boycott can attract penalties of $A750 000
per offence (higher penalties can be imposed where conduct is
directed towards a substantial lessening of competition in an
industry(7)). However, the WRA protects forewarned industrial
action, which is formally part of a process in which employees of
one enterprise are seeking an enterprise agreement with their
employer (s. 170 ML). On the other hand, the WRA introduces s. 127,
under which the AIRC may issue orders to prevent industrial
action.
The WRA also upholds 'freedom of association'
where employees have a right to belong or not to belong to a trade
union (s. 298A-L), and thus bans the 'closed shop', sometimes
referred to as compulsory unionism, although the WRA uses neither
term. Membership of unions is voluntary, however a closed shop can
exist when either the employer advises a potential employee to
become a union member, or, if after taking up employment, other
workers will not work with a non-union employee unless the new
recruit joins the union. One industrial relations glossary defines
a closed shop as 'an arrangement where the employment in the trade
or occupation depends upon union membership'.(8) The Act allows a
person who objects to union membership in such circumstances to
obtain a certificate stating this from the Australian Industrial
Registrar, and pay a prescribed fee (s. 267).
The WRA also requires federal awards to be
'simplified' by removing any provisions, which are deemed not to
conform to the prescribed allowable matters (s. 89A).(9) No such
prescription is required of certified agreements. Consequently,
unions, including the Maritime Union of Australia (MUA), have been
engaged in the exercise of translating award provisions into
certified agreements. Award provisions outside the 20 allowable
matters should become unenforceable after 30 June 1998. A proposed
amendment to the WRA has been introduced in Parliament to remove
superannuation as an allowable award matter.(10)
As well, and for the first time in federal
industrial relations, the WRA allows an employer to enter a legal
employment contract with one employee (not necessarily a group of
workers) called an Australian Workplace Agreement (AWAs, s. 170VF).
Australian Workplace Agreements can be scrutinised by the
Employment Advocate, and if he is not satisfied, by the AIRC, to
see if they disadvantage employees in relation to what would
otherwise have been their employment 'contract'-a relevant (and if
one is not applicable, by a designated) award. As noted later, the
use of AWAs to employ labour replacing union labour has been a
central feature of the waterfront dispute.
Underpinning these provisions are the objects of
the WRA, which, inter alia, recognise that workplaces can choose
industrial arrangements which best suit their needs (s. 3(c)). As a
consequence, the AIRC might be more reluctant to make a new federal
award, if it can be shown that the enterprise is operating
satisfactorily under other arrangements, including arrangements not
registered under either federal or State jurisdictions (i.e.
informal arrangements). The AIRC should cease dealing with an
industrial dispute where State awards or agreements govern the
employment relationship (s. 111AAA).
In short, alternatives to the federal
award/agreement system might become more common. These provisions
together form the main changes to federal industrial legislation,
and constitute what is being often referred to as the 'new
industrial relations'. The story of the waterfront dispute, in all
its constituent parts, appears to centre around an objective of
establishing a container port operation in which any new operator
is not made party to the existing relevant industrial awards (at
least those to which the MUA is respondent).
This objective can be achieved through a number
of devices including the use of redundancy of an existing
waterfront workforce. But redundancy of say 20 per cent of a
workforce will not be successful in these terms, in the sense that
the remainder will still be working under the previous industrial
instruments. Redundancy of an entire workforce might succeed, if
there are no challenges to the redundancy. If the employer simply
replaces the workforce with another workforce under supply from a
labour hire company, then it is likely that the courts will not
regard the redundancy as genuine, since the work is continuing to
be performed. The terminations are likely to be challenged by
disgruntled employees, and their union. It is easier for an
employer to terminate employees on a sequential basis, if the
paramount concern is to keep the enterprise operational, except for
the 'disadvantage' that the industrial instruments are
retained.
Where an employer can set up a 'greenfields'
site (i.e. have no previous employees, and no previous industrial
awards), the employer can make the offer of a job conditional upon
the new employee signing an AWA and thus set out terms and
conditions of employment. Should a union then seek to enjoin the
employer in an industrial award, it is likely one will be refused
(see above), and if granted, would still not displace the AWA. It
is easier to understand the manoeuvres of parties involved in the
waterfront dispute, if these objectives and constraints are kept in
mind.
The Government also made commitments at the 1996
election to reform the Australian waterfront. Waterfront reform has
been on the national political agenda since the mid-1980s. Indeed
the (then) Inter-State Commission investigated and reported on the
waterfront in 1989.(11) As an island continent producing mineral
and agricultural exports for distant markets, Australia has an
interest in ensuring that its port facilities are world class. The
Productivity Commission reports that Australia exports 370 million
tonnes of cargo by sea, and imports 50 million tonnes (1995-96
data). The total import and export trade is worth $60 billion but
the volume of exports (via containers) constituted only 2.6 per
cent of the volume of exports, but 40 per cent of the value of
exports. For imports, the container trade accounts for 66 per cent
of the value of imports and 16 per cent of the volume.(12) Ports
such as Townsville (QLD) (a bulk export terminal for coal) operate
at world class levels in respect of tonnage loaded, turnaround
times and reasonable manning levels.
However, a number of industry and government
studies have identified the container ports, mainly in Australia's
capital cities as being below world class practice in respect of
containers lifted and moved. The government states in
Waterfront Reform: Seven Benchmark Objectives (8 April
1998)(13) that Australian port cranes lift on average 18 containers
per hour whereas some lesser industrialised countries achieve 25
lifts per hour or better. The Department of the Parliamentary
Library has elsewhere reviewed the debate on crane lifts.(14) Dr
Clive Hamilton of the Australia Institute doubts that the
Government's level of productivity can be achieved without changes
to the pattern of container discharge off ships.(15) In any case,
there have also been criticisms of poor productivity levels due to
overmanning in container ports. The stevedoring companies would
like to reduce their permanent workforces and increase their use of
casual labour.
Over the 1980s, waterside companies, unions and
the then federal government devised a strategy under auspices of
the WIRA to improve port productivity. The program operated from
1989 to 1992 and attempted to address the issues of excessive costs
and delays. One outcome of WIRA according to the Bureau of
Transport and Communications Economics (BTCE) was that over 4000
waterside workers were made redundant at a cost of $419 million,
which included a government contribution of $165 million.(16) This
money was raised from the Australian Industry Development
Corporation via the Stevedoring Industry Finance Committee. The
loan was to be repaid via levies on the loading and unloading of
cargo. One legislative instrument used for this purpose was the
Stevedoring Industry Levy Act 1977, and there has been
other legislation introduced to support WIRA.(17) The BTCE
estimated annual benefit of WIRA reforms to container operators at
$168 million in 1993, while the total benefit was $275 million, and
slightly lower benefits than these were obtained for the year
before.
Similarly, the Productivity Commission's recent
report on the waterfront shows improvements. Charges for moving
containers fell from $370 per container in 1985 to about $203
currently.(18) The Productivity Commission also suggests that a
further reduction of $50 in the cost of moving containers is
attainable, although it might be noted that similar cost
improvements of the magnitude achieved since 1985 do not appear
able to be repeated.
There are now about 3000 waterside workers left
in container port operations. Waterside workers (operational
workers) are eligible to be members of the MUA. As with many other
heavy industries, waterfront operations have attracted substantial
capital investment facilitating major technological change and
decreases of labour requirements. This trend is unlikely to slow in
the coming years.
Primarily two port operators control container
traffic: the international shipping operator P&O Ports and
Patrick Stevedoring, although Sea-Land has a major container
operation in Adelaide.(19) Between them they control about 95 per
cent of national container lifts. Patrick Stevedoring (formerly
Strang Patrick Holdings) increased its involvement in port
operations in 1994 by purchasing the 50 per cent interest of ANL
Stevedoring P/L in National Stevedores Holdings P/L for $28
million. At the same time Howard Smith Ltd sold its 50 per cent
interest in National Stevedores Holdings P/L to Strang Patrick for
a similar amount.(20) However Patrick does not have security of
traffic compared to P&O Ports, which is also a major
international shipper and thus able to direct custom to its
stevedoring operations.
Negotiations between the MUA and Patrick for new
industrial agreements had been underway for much of 1997, but its
employees generally resisted attempts to improve the cost
effectiveness of Patrick, particularly by insisting on retaining
arrangements which generated large amounts of overtime (work beyond
the daily shift or roster). This work practice is being given more
investigation.(21) A solution being sought by the employers has
been described by one industrial relations newsletter in the
following terms:
What the stevedoring companies are looking for
in general, is to create a situation where annualised salaries are
introduced, but with no overtime component. The
companies want excess work to be done by casual employees who have
been trained up to do the supplementary work. Additionally,
companies also want to ensure that there is no idle time.(22)
The annual labour bill for Patrick' workforce is
estimated at $112 million (prior to the dispute) and annual losses
appear to have reached $8 million within the Patrick Stevedoring
operations.(23)
The farming constituency, represented by the
National Farmers Federation (NFF) has developed a keen interest in
waterfront operations. Although the bulk of Australia's exports
exit via the bulk terminals, certain classes of primary products,
such as frozen meat, rice and wool, are being increasingly exported
via container loads of product. The NFF had been involved in some
milestone campaigns involving the waterfront with the promotion of
the live meat export trade in the late 1970s and the efforts to
'free-up' the movement of bulk grains at certain ports in the late
1980s. The container trade is seen as another example of farmers
bearing excessive costs and delays concerning movement of their
product and the import of farm machinery and materials, and so
appears to have become the new testing ground.
In 1995 the then Opposition stated that the
waterfront reforms to date had been unproductive given their
considerable cost, and the container ports were still inefficient
by world standards:
It is quite clear, by any objective measurement,
that what the Government has been doing about waterfront
performance is both a disaster and an expensive flop. Why is it an
expensive flop? We spent $430 million undertaking this waterfront
reform program...We obviously have not benefited from it because we
have not got improved performance.(24)
Not long after assuming government in 1996, the
Prime Minister, the Hon. John Howard MP, reaffirmed the
Government's commitment to waterfront reform and again stated the
government's intention to lift productivity on the waterfront and
to insure that it was competitive on a world basis.(25) That
waterfront reform had become a major priority of the government in
its first few months of office is evident in the commissioning of
consultancies to research issues associated with waterfront
reform.(26) One estimate of the cost of eleven consultancies on
waterfront reform (to date) has exceeded $900 000. This includes
the cost of legal advice from a number of firms on the implications
of waterfront reform.(27)
An alternative approach to achieving industrial
change on the waterfront however, would be to allow a new entrant
to start operations on the docks as a third player to the two
operators but employing non-MUA members which could free up labour
operations and produce significant cost savings. According to the
former Transport Minister, the Hon. John Sharp MP, a consortium of
OOCL/COSCO sought to start container operations in the port of
Melbourne in late 1996.(28) The Melbourne Port Corporation welcomed
the potential new investment in container facilities at the port,
which might have reached $200 million.(29) According to Mr Sharp,
the Federal Government was also prepared to assist the new operator
in using the provisions of the WROLA Act in obtaining a cost
competitive labour arrangement. However, support for the OOCL entry
into Melbourne lapsed when it was appreciated that OOCL would only
adhere to work arrangements for its future employees as discussed
with the MUA.
The existing operators P&O Ports and Patrick
took legal action against the Melbourne Port Corporation (MPC) in
respect of their leases, as the new capacity would jeopardise their
investments. The manager of P&O Ports, Mr Richard Hein claimed
in the same interview that OOCL could have a serious impact on the
trade available to P&O, with the potential for profits to fall
'by a half' and volume to 'cut by a third'. The two operators
appear to have had assurances from the former Victorian Government,
that a third operator would not be allowed to set up operations in
the port. The formal reason given for OOCL withdrawing from the
arrangement concerned the proposed rental for the port space
(i.e.-high port charges).
In any case, part of the settlement of the legal
action against the MPC allowed Patrick to use new space at the port
(the Phillips Road area of East Swanston Dock) thus making its Webb
Dock available for other purposes. (News of this settlement was
communicated to Patrick Stevedoring employees in January 1998, when
they were denied entry into No. 5 Webb Dock, and a new operator set
up operations).
In September 1997 a small port operator in
Cairns Queensland, International Purveyors, attempted to bring in
non-MUA labour employed under Australian Workplace Agreements. But
the MUA sought international union support through the
International Transport Workers Federation (ITF) to hamper the port
operations of the parent company Freeport McMoran, a company with
international mining interests. The company quickly reverted to
employing their former employees.
In December 1997, a company called Fynwest
commenced training about 30 Australian Defence Forces (ADF)
personnel (either on leave or separated from the ADF) as waterside
workers in the United Arab Emirates (UAE) at the port of Rashid in
Dubai. The plan apparently was to train up to 80 personnel in
container port operations and bring them back to work on Australian
ports, or to train others. Under media investigations into this
training exercise, and with threats of international waterfront
action against the UAE, the UAE cancelled the training exercise and
the personnel were returned. Contracts of employment with these
individuals had been entered into in the form of Australian
Workplace Agreements.
Much of the contractual documentation between
Fynwest and Patrick Stevedores in respect of the Dubai training
exercise was released to the media in May 1998. Should ADF
personnel have been persuaded to forego their ADF service to take
an alternative career route, only to find that the alternative had
been cancelled, then the loss to an individual would have been
significant. This is because ADF personnel have access to a number
of services and subsidies not available to the bulk of the
workforce; housing and health care are but two of these
entitlements. A detailed review of ADF entitlements has been
prepared by the Department of the Parliamentary Library.(30)
On 28-29 January 1998, waterfront events
escalated when Patrick locked its employees out of its Webb Dock
operation in the port of Melbourne at midnight. At the same time a
new waterside operation, P&C Stevedores (PCS) which apparently
has the support of the National Farmers Federation, commenced
training a workforce at Webb Dock with a view to becoming
operational as a container port operator within a few months.
Patrick had leased the dock to PCS, but under terms concerning the
cargoes which might be handled by PCS.(31)
In January and February, the MUA used an
opportunity of seeking certified agreements with Patrick in
different ports. This also acted as a means for securing protected
industrial action. Also on the agenda at the same time as these
other actions were negotiations with a number of employers over the
principal waterfront award, the Stevedoring Industry Award. The MUA
argued that if key award clauses could be retained (after award
simplification) it would agree to cost savings of up to $10 000 per
employee under its proposed agreements. This would appear to be an
important concession and one noted by Dr Clive Hamilton:
The MUA has a policy of cutting overtime, and if
it succeeds will see waterfront wages fall over the next couple of
years.(32)
Industrial action to pursue new enterprise
agreements took the form of 48-hour strikes and/or bans on
overtime. Industrial action was switched between ports,
particularly Sydney, Fremantle (WA), Melbourne and Brisbane. This
action caused considerable delay and thus cost to the Patrick
Stevedores operation. Patrick responded by not paying for the core
(non-overtime) hours actually worked (in the case of the overtime
ban). For this it relied on s. 187AA and s. 124 of the WRA which
prevents an employer paying strike pay, and prevents the AIRC
hearing these matters. It appears that about 300 Patrick employees
had been engaged in protected industrial action over February-March
in part over enterprise bargaining and in part over award
simplification.
On 2 April, another union, the Australian
Workers Union, threatened to shut down oil refinery operations in
support of the MUA members locked out of Webb Dock. However caution
prevailed and the union did not carry out its threats. On 6 April
the MUA sought orders from the Federal Court preventing Patrick
from dismissing its workforce. Orders were not granted but the
company was advised to abide by its awards/agreements.
On 7 April, Patrick locked out its national
workforce of 1400 permanent waterside workers, and it appears,
another 300 or so part-time employees as well.(33) Supervisory
staff do not appear to have been terminated. It has since been
revealed that substantial restructuring of assets of four Patrick
employer companies was undertaken in September 1997 to make these
companies labour supply companies only (ie restructure the
companies so that they were not in possession of other physical
assets). Any interruption to the supply of labour could cause the
contracts with the parent Patrick company to be terminated.
On 8 April, the Minister for Workplace Relations
and Small Business, Mr Reith, who has responsibility for the
waterfront industry, introduced a package of waterfront initiatives
designed to pay MUA members, including those working for Patrick
Stevedores, their redundancy payments.(34) Redundancy payments are
payable when a permanent employee with sufficient service is
terminated because his/her services are no longer needed, i.e. is
surplus to requirements. The Productivity Commission identified
waterfront employees' redundancy payments as being very generous
compared to other schemes. Superannuation contributions can be
accessed as well if an employee is made redundant, often making for
total 'payouts' of over $100 000 for an individual employee.
A levy, to be raised and collected under Federal
legislation, has been proposed to finance the exit of MUA members
from the waterfront. It is to be introduced at a maximum of $10 per
vehicle loaded or unloaded (imported/exported) and $20 per
container loaded or unloaded (imported/exported) under proposed
federal legislation. If passed by the Parliament, the levy would
repay a $250 million loan to be raised by the Maritime Industry
Finance Company (MIFco) to pay out MUA members. All container port
operators would have to pay the levy, not just Patrick. It is
designed to force companies to reduce labour costs and improve
productivity. Both P&O Ports and Patrick have made written
commitments to support the Government's initiatives, and bring
average crane lifts up to 25 per hour.(35)
Patrick employees had their services dispensed
with as from 7 April 1998 since the employing companies were no
longer trading. At the same time, PCS using non-MUA labour
commenced stevedoring operations in a number of ports, in lieu of
the Patrick workforce under contract to Patrick.
On 8 April, the MUA sought court injunctions
preventing the termination of the Patrick employees. An interim
injunction (for one week) preventing the terminations was granted
by the Federal Court but stayed. However the PCS operation set
about docking ships and moving containers over the Easter break
(10-13 April).
On 14 April Patrick Stevedores, the NFF and the
Federal Government attempted to challenge the jurisdiction of the
Federal Court to hear the terminations application. On
17 April, the High Court (Justice Gaudron) rejected the
challenge to the Federal Court's jurisdiction. On 21 April 1998,
Justice North essentially restored the employment situation which
existed prior to 7 April, but these orders were appealed. The MUA
is pursuing substantive matters concerning illegal conspiracy and
breaches of freedom of association and breaches of employment
contracts. Part of Justice North's decision makes this observation
of the request made to the Court:
The Court has now been asked to make orders to
return the situation to the pre-7 April position. The union and the
employees seek orders that the Patrick employers continue to employ
the employees and the Patrick owners use only those employees to do
the work, which has always been done by the employees.(36)
The Court was prepared to grant interim
injunctions to restore the pre-7 April arrangements. It was
revealed that the parent Patrick company terminated contracts with
another four subsidiary Patrick companies which employed its
workforce under labour supply agreements, and placed these four
companies under administration.(37) However, Justice North's
reasoning for his orders makes reference to the trading position of
the employers in February 1998 where revenue was $19.7 million and
expenses were $20.2 million, thus 'restoration' appeared
commercially realistic especially in light of the MUA's commitment
to forego some portion of wages. It was found that there were
arguable cases in respect of unlawful conspiracy (to replace the
Patrick workforce) and in respect of the freedom of association
provision of the WRA being breached (employees terminated due to
membership of a union).
The employers appealed to a Full Bench of the
Federal Court to overturn the orders of Justice North. The orders
of Justice North were stayed. A Full Bench of the Federal Court
found Justice North's decision 'free from appellable error' on 23
April 1998.(38) The employer immediately challenged the decision in
the High Court.
Pickets were set up at the ports preventing the
movement of port traffic to and from the ports. The stevedoring
companies sought and gained injunctions to remove the pickets, and
on 20 April the Supreme Court of Victoria (Justice Beach) granted
Patrick a far-reaching injunction to clear the entrances to the
Melbourne port. Injunctions to prevent pickets from hindering
business have also been issued in other States, particularly New
South Wales and West Australia. Following an appeal to the Supreme
Court of Victoria, the breadth of Justice Beach's injunction was
confined to apply to officers and members of the MUA. Nevertheless
there have been arrests at a number of ports particularly Fremantle
and Brisbane. The effect of the pickets has widened with some key
manufacturers; particularly those in automotive production and
primary product export, being unable to meet export deadlines.
Nevertheless, unions have, so far, been careful to avoid the
massive penalties available for breaches of the Trade Practices Act
in relation to boycott conduct, and have preferred to back the MUA
financially.
On 4 May 1998, the High Court rejected the
appeals of Patrick and others against the orders of Justice North.
However, the High Court also found that the orders of Justice North
had the potential to force the administrator (of the four insolvent
Patrick employer companies) to trade while the companies were
insolvent. Thus the new orders give the administrator more
discretion to manage the business affairs of the four companies.
The fate of these companies awaits resolution.
It is difficult to assess the full extent of the
implications of this dispute at this stage. The scene is obviously
set for protracted (and costly) litigation. There are for example
the matters concerning illegal conspiracy, freedom of association
and breach of employment contract issues. There are still matters
concerning the withholding of pay (overtime) when ordinary hours
were worked during enterprise bargaining. There are also the
investigations of the Australian Competition and Consumer
Commission into a number of aspects of the dispute. These include
the conduct of parties which led to OOCL withdrawing its offer of
investment from the Port of Melbourne as well as terms of the
arrangement between Patrick and PCS for the lease of No. 5 Webb
Dock, and possible legal action against the MUA re the boycott
actions.(39) Therefore, it is too early to provide any
comprehensive overview of the implications of this dispute given
the pace at which events are unfolding. Nonetheless there are some
implications which are being cited in the media.
The role of the secondary boycott provisions has
been seen to be less than effective when challenged by 'peaceful
pickets'. However, not all future industrial disputes will be able
to call on mass organisation as has been the case in the waterfront
dispute. Using the mechanism of corporate restructuring to both
evade paying workers' entitlements and to dismiss a workforce is
very sensitive given recent terminations in the Cobar mine, but
again it is not clear from this dispute whether a 'green light' has
been given to employers to use similar devices. Some commentators
have noted that employers' traditional reliance on the common law
tort action of conspiracy against unions in industrial disputes has
been reversed in this dispute, and it has been the unions who have
used this legal approach.(40)
Nevertheless, the dispute has been contained to
Patrick terminals and container operations elsewhere have
continued, more or less. Thus the Government can point to the
effectiveness of its new industrial law, particularly s. 127 of the
WRA which allows the AIRC to make orders preventing industrial
action (i.e. which might have otherwise taken place in respect of
other Stevedoring operations). It might be also recognised that
thus far the PCS operation has used the AWA provision to employ its
workforce and to deny the MUA award respondency. Again, the WRA has
'worked'. One of the ironies of the dispute has been that the
freedom of association provision of the WRA (which in a new
direction protects the rights of persons not to
belong to a union as well as to belong to a union, or other
industrial organisation) has been pivotal in the preliminary
judicial findings that the employer acted illegally in dismissing
its workforce.
The protracted nature of the dispute appears to
have had very costly consequences, for example with those exporting
perishable items. P&O Ports has gained extra market share but
can't quickly resolve the congestion of containers now stockpiling
in various cities. Certain supplies are caught in the action, and
thus small and large business suffers from the dispute. Finally,
the public is now privy to offers and negotiations between Patrick,
the MUA, the Government, PCS and the administrators of the four
Patrick labour companies which allows one to think that the dispute
has returned to the industrial relations sphere or is heading back
in that direction, rather than being confined to the courts.
Could the exercise of improving productivity on
the waterfront have been better handled? Tony Mealor assisted ICI
Botany in the late 1980s to curb excessive overtime, 'call-ins' and
other practices. He has documented the ICI method of moving to
annualised salaries in the context of 24 hour production needs. He
has also outlined the consequences this has had for far superior
working relationships, productivity, output, change of culture and
efficiency(41). This was at a time when the then Conciliation and
Arbitration Commission exercised more control over deviations from
the standard working day and the standard working week than is the
case at present. After the waterfront dispute, his text might be
more readily consulted.
Nevertheless, the signs are that this dispute
has been the most heated industrial contest since the Clarrie
O'Shea case of 1969, when unions challenged penal provision of
the then federal law. The waterfront dispute will have significance
because of the in-depth debate on waterfront efficiency and
productivity and because of its implications for the conduct of
general industrial relations.
-
- As a discipline, industrial relations analyses the
organisational nature of employment and job regulation and/or
control. It analyses the relationships of unions (organisations of
employees), associations of employers and the role of
intermediaries such as the courts, in the undertaking and
performance of work. The principal legal institution governing
national industrial relations is the Australian Industrial
Relations Commission (AIRC).
- The Coalition's industrial relations policy Better Pay for
Better Work in its introduction mentions the need for direct
relations between employer and employee without the 'uninvited
intervention' of trade unions, employer organisations or industrial
tribunals.
- Productivity Commission, Work Arrangements in Container
Stevedoring and International Benchmarking of the
Australian Waterfront, Ausinfo, Canberra, 1998.
- Department of the Parliamentary Library, Bills Digest, Nos.
201-202, 1997-98.
- AIRC, Print P8382, 29 January 1998.
- AIRC, Print P 0859, 12 May 1997. There it was said:
'The matter of the reduction of hands is one about which, in the
absence of s. 170N, there would ordinarily be jurisdiction to
arbitrate'.
- Note interview with Alan Fels, 'Mayne Nickless ordered to pay
$7.7 million in penalties and costs following a TPC action over
collusion and price fixing' P.M., 6
December 1994.
- P. Sutcliffe, and R. Callus, Glossary of Australian
Industrial Relations Terms, (ACIRRT/ACSM, 1994) p. 31.
- The Workplace Relations and Other Legislation Amendment Act
1996 imposed an 18 month transition process, during which time
some 3000 federal awards would be redrafted to ensure that each of
their award provisions complies with 'allowable award matters'.
These are specified in s. 89A of the Workplace Relations Act and
cover issues like classifications, annual leave, wages but exclude
consultation clauses, technological change clauses and others.
- The Workplace Relations Amendment (Superannuation) Bill
1997.
- Inter-State Commission, Waterfront Investigation (vols
1-5), AGPS, Canberra, 1988.
- Productivity Commission, International Benchmarking of the
Australian Waterfront op. cit., p. 15-16.
- P. Reith, Waterfront Reform: Seven Benchmark
Objectives, 8 April 1998.
- Department of the Parliamentary Library, Understanding
Container Handling Statistics, Research Note No. 43, 1998-98.
- C. Hamilton, Productivity in Australian Container
Terminals, Mimeo, the Australia Institute, 1998.
- Bureau of Transport and Communications Economics, Review of
the Waterfront Industry Reform Program, Report 91, AGPS,
Canberra, p .1.
- Department of the Parliamentary Library, Stevedoring
Industry Legislation Amendment Bill 1990, Bills Digest
Service, 12 December 1990.
- Productivity Commission International Benchmarking of the
Australian Waterfront Research Report, Ausinfo, Canberra 1998,
p. 108.
- Productivity Commission, Work Arrangements in Container
Stevedoring, Ausinfo, Canberra 1998, p. 14.
- Australian National Audit Office, Matters Relating to the
Proposed Sale of ANL Ltd, Audit Report No. 2 1995-96, AGPS,
Canberra, 1995, p. 39.
- 'The untold docks story: the wharfies who resisted reform',
The Australian Financial Review, Weekend, 2-3 May 1998.
- 'Waterfront Reform', Industrial Relations and Management
Newsletter, April 1998.
- 'Corrigan's survival strategy', The Australian Financial
Review, 9 April 1998.
- The Hon. J. Sharp MP, House of Representatives
Hansard, 30 May 1995, p. 579.
- House of Representatives Hansard, 20 May 1996, p. 821.
- On 15 May 1997, the Hon. John Sharp MP, Minister for Transport
and Regional Development, in an answer to a question on notice in
the House of Representatives (Q.No. 1324) reported that $65
000 had been paid to the consultancy organisation ACIL between
April and June 1996 to devise an industrial relations strategy to
achieve waterfront reform.
- 'Wharf reform': we're paying' The Sydney Morning
Herald, 18 April 1998.
- 'Red Ships', Background Briefing, ABC Radio, 19 April
1998.
- 'Victoria: Announcement that the Hong Kong based Orient
Overseas Container Line is the preferred bidder for a new cargo
terminal', P.M. Tuesday, 4 February 1997.
- Department of the Parliamentary Library, The Challenge of
Military Service: Defence Personnel Conditions in a Changing Social
Context by David Anderson, Background Papers No.6 1997-98.
- 'Cargo limits on NFF, says Patrick chief', The Australian
Financial Review, 10 February 1998.
- 'The politics of productivity', The Australian Financial
Review, 29 April 1998.
- 'Corrigan's survival strategy', The Australian Financial
Review, 9 April 1998.
- P. Reith, Waterfront Reform: Seven Benchmark
Objectives, 8 April 1998.
- P. Reith, Waterfront Reform: Seven Benchmark
Objectives, 8 April 1998.
- Waterfront Union of Australia & Others v Patrick
Stevedores No.1 Pty Ltd (under administration) (CAN 003 621 645)
& Others [1998] 378 FCA, 21 April 1998.
- Australia's Corporation Law imposes a duty on directors to
prevent insolvent trading by a company. Where this is likely to
arise, the directors are required to place the affairs of the
company under external administration. The administrator will
assess the state of affairs of the company and make recommendations
to creditors.
- Patrick Stevedores Operations No.2 Pty Ltd & Ors v
Waterfront Union of Australia & Ors [1998] 397 FCA, 23
April 1998.
- 'Chairperson of the Australian Competition and Consumer
Commission comments on aspects of the waterfront dispute'
AM 21 April 1998. Allan Fels: '...we have been looking at
the Patrick and producer and Consumer Stevedores agreement down at
Webb Dock, the lease and the associated side agreements. And also,
we've been looking for some time at the OOCL litigation where an
agreement came to light between Patrick and the Port of Melbourne
Authority...
- 'Armoury of legal weapons', The Australian Financial
Review, 17 April 1998.
- T. Mealor, ICI Botany: A Decade of Change, Centre for
Corporate Change, Sydney, 1997.