Appendix: A brief history of union responses to attacks on workers

What We Face — Threats to Union Solidarity

Since the end of the Second World War Australian Governments have placed restrictions on the right to strike and have attempted to defeat worker solidarity. After the war, left-led unions prepared to fight for collective bargaining in preference to arbitration and conciliation courts. The weapon they used was collective action which is the direct confrontation with employers by workers and their union representatives — never to be confused with the tactics used in enterprise bargaining.

The main threats attacking union solidarity that have been introduced by Australian parliaments are:

  1. The Penal Provisions of the Conciliation and Arbitration Act
  2. The secondary boycott provisions of the Trade Practices Act
  3. The Workplace Relations Act 1996
  4. WorkChoices legislation 2006
  5. Building and Construction Industry Improvement Act 2006
  6. Other laws restricting the right to organise i.e. anti-picketing laws, laws opposing public assembly, so called anti-terrorism laws, laws of contempt, criminal and quasi-criminal laws against industrial action.

Although these are some of the most conspicuous restrictions placed on unions, there are other legal restrictions that have been used against workers and their unions. For example in Queensland Essential Services Legislation was used against SEQEB power workers in 1985. This legislation made it illegal both to strike and to conduct effective pickets outside SEQEB depots against the use of scab labour.

Another example is the ability of an employer to sue a union and its officials for damages under common law in the same way as a company. Damages awarded against unions in legal action have been both large and crippling. One example was the damages and legal bills of over $5 million charged against the Meatworkers Union in the Mudginberri dispute. The union was bankrupted. While initially unions attempted to deny that they were legal entities like corporations, this was soon rejected by the courts.

Finally, laws against conspiracy have been used against unions and their officials. The Waterside Workers Federation (WWF) was taken to court for civil conspiracy in 1956 when it imposed bans on two wharfies, the Hurseys. They were members of the Democratic Labor party (DLP) dominated by the Catholic Church and had refused to pay union dues. These dues were used to fund ALP electioneering and the rival DLP was opposed to this use of funds. The High Court found that the members of the WWF who imposed the bans on the Hurseys were part of an unlawful conspiracy and the court awarded damages against the union.

There follows a summary of struggles in relation to each of the main threats listed above.

1. Penal Provisions (1950s — late 1960s)

Penal Provisions were the original laws to penalise the use of secondary boycotts and other forms of union solidarity by unions in the 1950s and 1960s.

Threat to Union Solidarity

The conservative Menzies Government in the 1950s extended the penal powers of the Conciliation and Arbitration Act. The ACTU and the ALP-in-opposition declared themselves against these powers alongside the Communist Party of Australia.

History/Legislation used

In June 1949, the Chifley Labor government introduced special emergency legislation to prevent the use of union funds to assist miners in a general strike they had commenced. Under this legislation seven union officials were sentenced to twelve months imprisonment, one to six months, five other union officials were each fined £100, two unions were each fined £2000 and one was fined £1000.

Resistance where threat has been applied

In 1969, the union movement confronted the penal provisions when Clarrie O’Shea, secretary of the Victorian Tramways Union was jailed for contempt of court. He had refused a court order to produce the tramway financial accounts. These accounts would have shown the union’s sources of funds, including funds from other unions.

One million workers around Australia took strike action. Under pressure of the workers action, a mysterious benefactor paid the fine the following day. Following Clarrie O’Shea’s release, the penal provisions were not invoked for another 20 years. They had been rendered ineffectual by mass action

2. Secondary Boycotts (1970s — 1990s)

The use of the weapon of secondary boycotts against employers and governments is a trade union and workers political right.

Threat to Union Solidarity

Secondary boycotts normally occur when one group of trade unions, not directly involved in a dispute, take industrial action in support of other trade unionists. This action can take the form of strikes, go slows, picketing, bans etc.

Governments and employers have always resisted the basic union right of secondary boycott.

History/Legislation used

There are various ways in which union boycotts have been attacked. Governments have used the common law of torts to attack union right of secondary boycott. However in 1976 the Trade Practices Review Committee (known as the Swanson Committee) set up by the Fraser government recommended that union boycotts be subject to the Trade Practices Act 1974 (Trade Practices Act).

Underlying the recommendation of the Swanson Committee was a view that the industrial torts were dead letters in practice and that remedies should be provided to businesses affected by secondary boycotts. As a result, 1977 saw the introduction of s 45D to the Trade Practices Act which prohibited secondary boycotts.1

Secondary boycott provisions contained in the Trade Practices Act are modern equivalents of penal powers fought against by the workers' movement in the 1950s and 1960s. The penal provisions applied a system of bans on union activity. If these bans were ignored by unions they would be found in contempt of court and large fines would issue. In the case of the Trade Practices Act the penal provisions took the form of injunctions followed by awards for damages and penalties.2

Injunctions.

The sections banning secondary boycotts are s45D and s45E of the Trade Practices Act. Sections 80 and 82 of the Act allow employers to take injunctions against unions, officials and union members. Since then injunctions have been widely used.

Damages may also be awarded against a union and its members for trade lost as a result of secondary boycotts. The only award of damages under these provisions was in the Mudginberri dispute in the 1980s where the plaintiff was awarded approximately $1.5 million in damages.3

In other cases unions have returned to the negotiation table before damages could be awarded. In one case the Building Workers' Industrial Union of Australia (BWIU) paid $130,000 damages to Odco Pty Ltd in an out-of-court settlement in 1991.4

In another the Australian Competition and Consumer Commission (ACCC) settled its litigation with the Transport Workers’ Union (TWU) before the Federal Court in Queensland. The TWU was engaging in secondary boycotts against transport companies whose drivers were not financial members of the TWU. The basis of the settlement reached between the ACCC and the TWU involved injunctions requiring the TWU not to engage in similar secondary boycotts for two years. The TWU retained the right to ascertain whether drivers are members of the union and to talk to them about becoming members. The TWU was forced into a trade practices compliance program and had to contribute to the cost of the proceedings in the Federal Court.5

Penalties can also be awarded against unions. Currently penalties can be sought by the Australian Consumer Competition Commission (ACCC) in the Federal Court. Under Federal Labour governments of the 1980s and 1990s the Industrial Relations Court of Australia had jurisdiction over enforcement of penalties for secondary boycott activity by unions.6

Resistance where threat has been applied.

The first major use of the secondary boycotts provisions was against the Meatworkers Employees and Industrial Union (AMIEU) in the Live Sheep Export dispute of 1978.

In 1978 meatworkers tried to prevent live export of sheep to the Middle East by pastoralists in South Australia. Live export meant loss of jobs in an industry where meatworkers were already at the mercy of the market, drought and competition in the capitalist economy.

Elders (an exporting pastoral company) together with the Federal Government took action against the union in the federal court and one gained an injunction under the Trade Practices Act. This meant that if the meatworkers continued to picket, the union would be placed in contempt of court.7 Pickets were arrested while farmers stood ready to load cattle on that grey, wet day in 1978. In that case meatworkers and their union took direct action against the loading of the live cattle. One meatworker had his head broken open when he was batoned by Senior Constable John Watt.

Eyewitnesses say that the baton may have been meant for another, Norm Hughes8. One comrade said that if Norm Hughes had gone down, all hell would have broken loose. Norm Hughes was well known and one of the most respected unionists in the district. Senior Constable John Watt with his usual crazy venom could not have calculated for meatworkers armed with their tools of trade sticking by their fallen comrade as he jumped on the roof of a nearby car and attacked the worker pictured.

Police were lucky the worker Watt did hit was young and fit and got to his feet soon after the blow was struck (shown).

The picket was described in the following way by a meatworker present:

"Export the Pigs" says Meatworkers.

The rallying slogan of the meatworkers at the Brisbane waterfront on October 17th. was “export the pigs”, referring to the police. The media played down this political slogan, or in most cases didn’t even report it. Why you may ask? Because as the system goes into further crisis and the working class takes up real class conscious slogans, not empty harmless ones, the capitalist media senses its impending end.

600 militant meatworkers from all sheds within a few hours’ drive of Brisbane picketed Brisbane waterfront, in an attempt to stop the export of live cattle to Japan. The police were out in well organised force and perpetrated violence that even by their own standards was of an unexpected degree.

But meatworkers were undaunted by the bosses’ pigs and have recorded in history a lesson in how the working class is not going to stand idly by and allow itself to be terrorised by the capitalist state machine (in this case, the pigs). Every time the pigs used violence, the workers taunted them with the vocal slogan “export the pigs”. This drove the pigs into a frenzy, as the workers clearly understood which class the pigs were serving.

POLICE TACTICS

First of all, they only arrested youths of both sexes and workers of small stature. But as their violence became an uncontrollable frenzy, they got somewhat braver, and arrested a few larger workers. Their tactic of using five pigs to one worker didn’t change, one to each arm and leg and one to thump the helpless worker. The heroic resistance of meatworkers, before being rendered helpless showed that when we get organised the pigs, and the capitalist state they uphold are nothing but paper tigers, strong in appearance, weak in essence.

Another tactic was not to arrest any union officials, paid or unpaid. But most importantly they left alone most workers who are vocal at meetings. From this you can see how the police state has penetrated the workers’ ranks with police spies. Rank-and-file waterside workers walked off the job for four hours. However, they were bound by their Federal Executive not to support the meatworkers unless their executive had prior agreement with our union. In an attempt to bring their executive in line with other workers who were struggling for their jobs, the waterside workers stopped work. They stopped work because the pigs were at the wharf gate, but then they were directed to load the cattle. Meatworkers and wharfies both felt let down by the mess their respective “leaders” had got them into, particularly as the battle was raging. These “leaders” played into the hands of the bosses who took advantage of antagonism between the union bureaucrats.

At one of the Brisbane main meatworks the following morning, 500 workers voted to stay out on strike for a further 24 hours as a protest at the arrest of our comrades. There was a very angry mood at this meeting and one worker stated that for 40 years he had been a militant at job level, believing that was as far as he should take it. He had never been to a rally or a demonstration before. This time he had been to the picket and had personally witnessed, not on T.V. but for real, the police in action. He stated that if the ALP was elected tomorrow, and didn’t shoot the pigs, they would certainly live to regret it (instant thunderous applause). It may not be a very scientific way of expressing it, but the class sentiment was there.

The inter-union antagonisms were also reflected in the fact that the transport drivers were instructed by their union leadership to drive through the picket lines. Some drivers did this very fast, thus causing worker to fight worker, e.g. smashing the truck windows.9

The Mudginberri Dispute

The Australasian Meatworkers Union (AMIEU) was made bankrupt through use of secondary boycott provisions in the Trade Practices Act.

In 1984-85, Mudginberri Station Pty Ltd, the owner of an abattoir in the Northern Territory run by Jay Pendarvis and backed by the National Farmers Federation sued the Meatworkers union (AMIEU) for damages under s45D of the Trade Practices Act.

Mudginberri workers had negotiated their own employment contracts with Pendarvis without union involvement. It was claimed that the Mudginberri workers were happy with their contracts and refused to support the picket. The union was concerned that wages and conditions at Mudginberri did not comply with standard award entitlements such as minimum pay, sick pay, annual leave and workers’ compensation.

Union officials used pickets to prevent access to Mudginberri station. When Commonwealth meat inspectors refused to cross the picket line, production ceased. Pendarvis sued the union.

The union was fined $144,000 plus costs. Punitive damages of $1.458M were awarded by the court under s82 of the Trade Practices Act for lost export earnings.10

The union movement does its best to avoid the damages that could be awarded under the Trade Practices Act. "…damages have been awarded and assessed by the Court on only one occasion" that was the Mudginberri Dispute.11

Nevertheless injunctions and cost of litigating actions under the Trade Practices Act have been common since bans on secondary boycotts were introduced in 1976.

Actions by employers against secondary boycotts can be taken under other laws with provisions similar to the Trade Practices Act. Some examples were injunctions taken against Ansett Airline Pilots in 1986, against workers at Dollar Sweets dispute in 1985. Court actions were taken against the MUA West Australian Division in 1998 when wharfies had blocked access to Patricks premises on North Quay at Fremantle Harbour.12

New measures to prevent Secondary Boycotts

The Federal Coalition Government proposes to introduce legislation to strengthen the secondary boycott provisions of the Trade Practices Act 1974 (TPA). This move by the government will have a major impact preventing attempts by environmentalists to blockade loggers and picketing of Spotlight by workers when this company tried to introduce Australian Workplace Agreements.

The proposed amendments to the Trade Practices Act is aimed at stopping community groups from supporting unions as occurred during the 1998 MUA dispute.

The defeat of these types of laws is just as important as the defeat of industrial relations legislation such as Work Choices.

Costello said the amendment to the TPA would allow the Australian Competition and Consumer Commission (ACCC) to bring representative actions for breaches of the Act’s secondary boycott provisions.

The move will give the ACCC unprecedented powers to stop boycott action by unions and other organisations, including community groups.

The Government says the aim is to help small businesses damaged by boycott conduct but lacking financial resources to initiate private litigation.

Mr Costello said the Government had also been consulting on a separate bill to strengthen the misuse of market power and unconscionable conduct provisions of the Trade Practices Act. These amendments would be introduced into parliament in the near future in a separate bill.13

3. The Workplace Relations Act (1996 to 2006)

Prior to the introduction of the Workplace Relations Act wages and conditions were set under Industrial Relations Acts. This legislation regulated wages under awards that had been fixed centrally in the 1970s. Gradually under the Accord between the Federal Labor government and the unions in the 1980s enterprise bargaining was introduced. Under the Accord in the early 1990s the old awards were stripped of all but minimum wages and conditions and replaced in part by enterprise bargaining agreements between unions and individual employers.

Threat to Union Solidarity

The Federal Government first introduced the Workplace Relations legislation in 1996 to further curb unions' ability to collectively bargain.

State Governments followed with legislation that largely mirrored the federal legislation. The main difference was the Federal Government placed an emphasis on individual agreements called Australian Workplace Agreements. These agreements have remained at the margins of the industrial relations system because the main bargaining model during this period has been a hybrid of the old award system and enterprise based bargaining referred to above.

History/Legislation used

The main objective of the Workplace Relations Act was to restrict the right of unions to organise.

This was done in a number of ways.

For example the legislation reduced the number of 'allowable matters' that could form the basis of 'protected' industrial action or the 'no disadvantage test'. This means that the issues on which workers could bargain or strike were limited.

Another was the restriction placed on who could take strike action prior to or during negotiations over an enterprise bargaining agreement.

A secondary boycott is not a 'protected' strike under the Workplace Relations Act as s170mm of the Workplace Relations Act 1996 prohibits secondary boycotts. It states that Industrial action must not involve secondary boycott and such action "is not protected action."

Generally speaking the Workplace Relations Act enables employers going to the Australian Industrial Relations Commission to obtain return to work orders before conciliation can commence. This is designed to defeat the purpose of industrial action and to take the pressure off an employer engaged in Enterprise Bargaining with a union.

The secondary boycott provisions of both the Trade Practices Act and the Workplace Relations Act place penalties on the solidarity actions of other workers.

Resistance where threat has been applied.

In February 1998 Gordonstone miners were illegally dismissed and were entitled to be re-employed. The Federal Court did not have the power to quash the decision of the Industrial Commission’s Full Bench under the Workplace Relations Act 1996.

The CFMEU won an early round in their unfair dismissal case in the Federal Court. Industrial Commissioner Hodder ruled that when the mine reopened the illegally sacked miners should have preference of employment.

This was overturned by a majority Full Bench decision of the Industrial Commission because of a legal technicality arising from the Workplace Relations Act. Six years later in 2004 the case remained unresolved. [Note: In 2004, only 42 workers from over 8000 cases for unfair dismissal were re-instated by the AIRC under the Workplace Relations Act 1996.]

The AWU made a legal challenge against Electrolux to obtain compulsory negotiating fees from non union members under the WRA 1996. The High Court rejected the application. It also placed further restrictions on the right to strike under the WRA 1996 (see Electrolux case 2005).14

Electrical Trades Union Victorian secretary Dean Mighell, who initiated the use of bargaining agents’ fees, said:

“We think that the bargaining agent’s fee is real and, certainly with a change of government, will be back in town.”

He said many agreements negotiated by the ETU contained such clauses although they had not been activated due to a high level of union membership at workplaces.15

Australian Workers Union (AWU) South Australian branch secretary Wayne Hanson said a fundamental right of workers to advance their interests had been removed.

“The High Court has confirmed what the unions have known for a long time, that is that John Howard’s industrial relations regime is so restrictive it is now unworkable.

It has removed any space to negotiate in the broad arena on IR matters.”16

4. WorkChoices

17

This legislation is designed to enable employers to take control of the workplace out of the hands of workers and their unions. The legislation is designed to centralise the award system federally and leave the State Industrial Relations Commissions with a limited role. The High Court may make some further pronouncements as to the extent of this centralisation which is lawful.

Threat to Union Solidarity

Some state governments have made a high court challenge against centralisation of their industrial relations regimes. The challenge was based on state's rights and the extent of the use of the corporations' law by the Commonwealth.

Under the legislation the High Court has ruled that state industrial commissions may be forced to relinquish their regulation of workers by the Federal Government exercising its corporations' power in the constitution.

Only those workers not employed by a company or not employed by a Federal Government agency would come within the jurisdiction of the state industrial commissions. Current estimates are that about 85% of workers may come under the new federal system.

History/Legislation used

The WorkChoices legislation amends the Workplace Relations Act 1996. It is called the Workplace Relations Amendment (WorkChoices) Act 2005 No. 153, 2005 – An Act to amend the law relating to workplace relations, and for related purposes. It is an attempt to further reduce the right of unions to organise.

Some of its features include:

  1. A Fair Pay Commission would take away the role of wage fixing away from the Australian Industrial Relations Commission (AIRC).
  2. Combined with this is the abolition of the 'no disadvantage test' (NDT) in the setting of wages and a further reduction in the number of 'allowable matters' that can be the subject of the NDT.18
  3. A further reduction of the number of 'allowable matters' that can be the subject of a lawful industrial dispute or be the subject of the no disadvantage test. The new allowable matters under the WorkChoices legislation are:
    1. 38 ordinary hours per week
      1. plus reasonable additional hours
      2. includes authorised leave
      3. averaged over 12 months
    2. Four weeks annual leave
    3. 10 days personal/carer's leave + 2 days compassionate leave
    4. 52 weeks unpaid parental leave
    5. Classifications and minimum rates of pay
    6. Above conditions cannot be included in awards except for hours of work.

Streamlining and enforcing procedures to increase the numbers of individual agreements (Australian Workplace Agreements) around Australia thus shutting out union negotiated agreements.

There will be restriction of the right of entry of a union into a workplace.

The Commonwealth Employment Advocate and AIRC to oversee secret ballots of union members prior to industrial action. It may take up to six weeks to jump through all the hoops to have a protected action.

A relaxation of the existing employment laws to permit employers to hire independent contractors on non-union individual agreements that do not provide for sick pay, superannuation, long service leave or worker's compensation.

Resistance where threat has been applied.

There are three strategies proposed to resist the legislation:

  1. Accept the laws and wait for change of government. This is the ALP strategy which is sometimes cloaked in rhetoric about a legal, media, industrial and political strategy.
  2. Defy the legislation in a piecemeal way. This includes taking industrial action in a selected dispute to test the laws. ACTU secretary Greg Combet foreshadowed that this approach may be adopted. However few details have been given.
  3. Defy the laws in a concerted way. This is a response organised centrally and with co-ordinated response across the union movement.

Another strategy has been to have EBAs certified prior to the introduction of the legislation.19

5. Building and Construction Industry Improvement Act 2006 [BCII Act 2006]

Historian Humphrey McQueen said that:

…globalising capital needs the IR laws (WorkChoices legislation). At the core will be its need to discipline labour-time for the maximisation of surplus value. The state is organising the bosses and disorganising the workers. Clarity on what our class enemies are up to is essential for the success of any fightback."20

Threat to Union Solidarity

The Building Industry Unions (CFMEU, BLF, ETU and Plumbers Unions) are a target of this special legislation introduced in 2005 after the Cole Royal Commission into the building industry. This legislation is called the Building & Construction Industry Improvement Act 2005 (BCII Act 2005).

History/Legislation used

Broadly, this legislation attacks:

  • The right to strike
  • The right to organise
  • The right to collectively bargain
  • The right to freely associate

The BCII Act 2005 included a wide definition of 'building work', specifically made 'building industrial action' unlawful, introduced huge fines, unlimited compensation and injunctive relief to hit parties engaged in unprotected industrial action, expanded the circumstances in which unions would be liable for the conduct of its members, provided for the establishment of the Australian Building & Construction Commission (ABCC) and the office of the Federal Safety Commissioner.

Pattern bargaining used so much by the building unions since 1996 would be banned by the legislation. Pattern Bargaining is broadly defined and made illegal. Under the legislation union attempts to negotiate the same conditions for their members using similar agreements with different employers will be regarded as pattern bargaining.

The government will impose large fines against the union, its organisers and individual members for striking.

Also the Building & Construction Industry Improvement Act 2005 (BCII Act 2005) gives the new head, the ABCC Commissioner, great coercive powers:

  • If the ABCC Commissioner exercises his/her powers to require a person to submit to an interview, they must do so. Penalty is 6 months imprisonment.
  • In addition, there's the removal of the privilege against self-incrimination in interviews
  • There is also an express removal of any right to refuse to speak on the grounds that to do so would be against the public interest.21
  • The BCII Act 2005 quasi-criminalises industrial action (other than protected action). The law specifies:
  • Fines are up to $110,000 for corporate entities, $22,000 for individuals
  • Anyone who is 'involved' can be fined
  • Also expressly provides for, injunctions, orders for compensation (i.e. damages), and sequestration of assets.
  • Work Place Relations Act 'no costs' provision does not appear to apply to BCII actions.

Resistance where threat has been applied.

The strategies discussed for the WorkChoices legislation also apply here.

Industrial Strategy. 107 members of the CFMEU went on strike in Western Australia to get reinstatement of their union delegate. He had been sacked by Leighton Kumagai (LKJV) when the workers and their union tried to fix long-standing safety concerns and excessive working hours issues on the trouble-plagued MetroRail project near Perth.

Their strategy was to take industrial action.

In addition to this strategy some construction unions have attempted to protect union assets that may be confiscated under this legislation.

6. Other laws restricting the right to organise (1940s – 2006)

These laws include anti-picketing laws, powers to stop, question, search and detain, laws opposing public assembly, anti-terrorism laws, sedition, laws of contempt, laws restricting use of finances by unions, criminal and quasi-criminal laws against industrial action.

Most of these laws have been around for over 100 years in one form or another. They have restricted the unions' right to organise especially on the streets and on the picket lines.

In Queensland they have a long history of use against workers of rights to assembly, march, hand out leaflets, posters and the right to picket.

Political marches were banned in Queensland in 1977 when uranium shipments were blocked on Brisbane wharves by anti-uranium activists and the Waterside Workers Federation.

Rights to strike and to defend the workplace from the use of scabs by employers (picketing) were outlawed in 1985 by the Bjelke-Petersen Government under Essential Services legislation.

Similar legislation has been used by both Labor and liberal governments since the second world war against Miners in 1948 (Labor government); Railway workers in Queensland in 1948 (Labor government); Mt Isa miners in 1964 (country party government); all workers in street marches 1977-79 (liberal/national party government); Latrobe Valley power workers in 1978 (Labor government); SEQEB workers (national party government), Waterside workers in 1998 (liberal/national party government).

These laws have often been policed by secret government organisations like ASIO or special branches set up by state police services by various governments. In Queensland the Special Branch worked for years using such laws against union members. They often engaged the assistance of police thugs known as Task Force and the riot squad who went by the official title of public order squad.

A brief summary of the laws and workers response are set out in the following table. Only recent examples have been given because an analysis of all the disputes mentioned above are beyond the scope of this chapter and this book. There are a number of pamphlets, oral histories and books that describe some of these threats to union solidarity. Some examples are: Storm in the Tropics –a story of the Mt Isa Mines dispute of 1964; Under the Hook by Wendy Lowenstein (a writer) and Tom Hills (a wharfie); Not Guilty and Guilt by Association were pamphlets by LeftPress Printing Society that dealt with political and legal defence to charges laid against workers during the repression of the Bjelke-Petersen Government. More recently an article titled Not Guilty outlines how political activist defence was conducted in practice.22

Threat to Union Solidarity

  • Anti-picketing laws
  • Powers to stop, question, search and detain
  • Laws opposing public assembly
  • Anti-terrorism laws, sedition
  • Laws of contempt
  • Laws restricting use flow of finances by unions.
  • Criminal and quasi-criminal laws against industrial action such as resist arrest, hinder police, abusive language, assault, and wilful damage to property

History/Legislation used

These are laws that appear in a variety of legislation that include:

  • Crimes Act 1914
  • Criminal Code Act 1995
  • Migration Act 1958
  • Surveillance Devices Act 2004
  • Customs Act 1901
  • Anti-Terrorism Act 2005
  • Queensland Peaceful Assembly Act 1992

Common types of secondary boycotts in the building and construction industry

The following examples may involve a secondary boycott under the WRA or the TPA:

Picketing23

Picketing may be lawful or unlawful, depending on the nature of the demonstration. However, it often involves unlawful activity, such as preventing or hindering employees, suppliers, or customers from entering a worksite. Where the conduct of the picketers (who are not employees) hinders goods or services being provided to or acquired from the employer by outside parties, there may be an unlawful secondary boycott. The Federal coalition government is to introduce legislation in early 2007 to strengthen the secondary boycott provisions of the Trade Practices Act 1974 (TPA). The new amendments will restrict workers picketing firms like Spotlight when it tried to introduce Australian Workplace Agreements (AWAs). It is also aimed at preventing community groups from supporting unions as occurred during the 1998 MUA dispute. Community pickets have been a tactic used by unions in the campaign to defeat WorkChoices. The new legislation will give the Australian Consumer and Competition Commission the power to take actions against workers and their unions on behalf of businesses.

Black-banning24

A black-ban is a limitation or restriction on a person working, or a limitation or restriction of the performance of work at a designated worksite. It may involve harassment or ostracism of the person black-banned or of a person attempting to enter a 'black' site. As with picketing, where this conduct hinders goods or services being acquired from or provided to the employer by outside parties, there may be an unlawful secondary boycott.

In 2005 two union officials were charged under laws that restrict the right to organise.

Under militant leadership, pattern bargaining became one tool for improving wages and conditions for strong unions like the CFMEU, AMWU and ETU in Victoria and elsewhere.

Resistance where threat has been applied.

Martin Kingham (CFMEU) was charged with contempt of the Cole Royal Commission into the building and construction industry. He secured ALP support, and was acquitted.

Craig Johnston who was jailed for defending the jobs of locked out AMWU members. Johnston, without ALP support, ended up in jail. Yet five thousand workers stood outside the court with placards claiming Johnston's innocence while inside his lawyers were pleading guilty to charges of affray.25 Such a plea resulted in temporary mercy from the court through a plea bargain with the prosecution. However the lawyers underestimated the resolve of the employers and the establishment in Victoria. They were determined to make an example of him. He was sentenced to two years and nine months’ jail, with nine months to be served prior to parole.

Conclusion

These laws are aimed at boosting profit within the constraints of the Australian economy.

The WorkChoices legislation is designed primarily to assist employers assert control of the workplace. WorkChoices legislation is not merely designed to reduce wages.

Better wages and conditions may flow to workers by their unions asserting control in the workplace. This is especially so in periods of economic growth. In recent years the Australian economy has maintained growth through high employment and increasing working hours. Workers have been unable to resist this increase in working hours. However it is only partly due to the anti-union laws. Employers too have been successful in reducing industrial action. The increased casualisation of jobs has assisted employers in reducing the effectiveness of unions.

At the time of writing the unions' strategy has been to fight for rights at work through public rallies rather than through an industrial campaign. On 30 November 2006 at mass rallies the ACTU even changed its 'Your Rights at Work' slogan from "worth fighting for" and added "worth voting for".

In doing so, the union leadership signalled its purpose to take the campaign from workers fighting for their rights in the workplace to combating anti-union legislation at protest rallies and through election campaigns.

This led to a decrease in the numbers attending the protest rallies because rights at work is what most workers want. This is how one union delegate put it in an email to his organiser after the 30 November 2006 protest rallies:

"To put it bluntly, in most situations, workers hate the boss because of the nature of the power dynamics in a work place.

This is the way it is and always has been.

There is an understanding that the government has provided the conditions for employers to attack workers' rights, and workers hate Howard for this.

It is primarily the employers who do this and it is this that workers have first-hand understanding."

The WorkChoices legislation should be seen as only part of a long history of anti-worker legislation from Labor and Liberal Parties.

During the past twenty-five years many restrictions have been placed on unions. The new legislation should be seen in that light. These changes should not be viewed as some legislative Armageddon which will wipe out unions forever.

Legislation cannot turn the tide of history while the attack is against all unions. History is with the workers. If the attack shifts to one union like the BLF then the result depends on the support that it gets from other unions. It is unlikely that the ACTU will try to save it; the ACTU cast the BLF adrift in the 1980s and may do so again. The ALP has already signalled that it stands with the electorate against unions like the BLF. Yet at May Day in Brisbane in 2005, the current ACTU president Sharan Burrow promised to support the BLF (CFMEU) to the hilt against government attacks.

Will unions make that promise come back to haunt her? Probably not.

The mining division of the CFMEU are happy with the growth in their industry driven by Chinese demand for coal and metals. They feel secure under the existing growth in commodity prices. The Queensland state secretary of the miners union, Andrew Vickers, said:

"the mining sector of the economy is going gang-busters at the moment… the multinationals engaged in mining in Queensland may not like the proposed attack on unions… they may have some disagreement with Howard over the timing of the legislation when skilled labour is needed in the mines because of the high demand for coking coal."26

The fact is so much damage has been exacted over the past twenty years that many unions, already weakened by repression, are no longer true to the principles of solidarity. Much of the leadership have given up and it is left to rank-and-file workers to carry the fight.

It should be remembered that these weapons are only laws that are a fraud upon workers. Such laws that have been overcome through struggle and solidarity.

Use of laws in economic crisis

The WorkChoices legislation is designed for times of economic recession. Australia has had growth in certain sectors of the economy (i.e. in mining, property and construction) during the coalition government of 1996-2007. The legislation is designed for a downturn and a boom. The coalition government has given business the ability to employ workers on AWAs (sometimes with lower conditions and at lower pay) rather than sack them outright. Under WorkChoices when the boom ends the employers can lower wages and conditions or sack workers outright. It will be more difficult to organise workers in times of economic recession. The militant minority movement discovered that during the Great Depression of the 1930s.

Unions embraced economic rationalism as a self-perceived survival mechanism. This turned out to be self-defeating. It is easy to see the period 1980-2005 as the worst years for the union movement since the 1890s. The list of defeats is considerable. The list below shows some examples, citing the industrial dispute, the union Involved, a description of union defeat, and the year.

Industrial Dispute Union Involved Description of Union Defeat Year
SEQEB
(Qld)
Qld Electrical Trades Union (ETU) Mass sacking of SEQEB linesmen by the Bjelke-Petersen Government. . Loss of the right to picket. Employment of scab labour under contract. State owned electricity utility run down in preparation for privatisation. 1985
Mudginberri
(NT)
Australasian Meatworkers Union (AMIEU) Meatworkers Union made bankrupt through secondary boycott legislation. An abattoir owner backed by the National Farmers Federation sued for damages under s45D of the Trade Practices Act. The AMIEU was bankrupted by the court order for damages and costs. 1986
BLF deregistration
(National)
Builders Labourers Federation (BLF) BLF lost access to Industrial Relations Commission. Hawke Labor government sought the de-registration of the union. Labor Senator George Georges resigned from the ALP in protest.
[col]1986
Dollar Sweets dispute
(Vic)
Confectionery Workers & Food Preservers Union of Australia A common law action, to recover the damages done to a business, was used by the employer against the union in the Victorian Dollar Sweets action. Dollar Sweets sued the union after it led a strike in support of a pay claim; damages of $175,000 were awarded against the union.27 1988
Airline Pilots’ Dispute
(National)
Australian Federation of Airline Pilots Airline pilots sought a 30% wage increase. Hawke Labor government. Used military aircraft to break the pilots strike. Damages of $6.48M awarded against the leaders of the Australia Federation of Air Pilots by the Victorian Supreme Court. The ACTU refused to support the Pilots’ Federation. 1989
Nestlé's
(Vic)
AMWU Melbourne factory was shut and workers were locked out and told if they didn’t accept a new enterprise agreement, the plant would be closed and chocolate would be imported from Britain. The national secretary of the union, Doug Cameron, advised the workers to accept the deal.28 1996
Cobar
(NSW)
Rural Workers Union 250 miners were sacked in Cobar, NSW when the company closed its mine. This became known as the 'Cobar option', as the company made its employing arm insolvent to prevent its workers from getting their entitlements. Patricks used a similar ploy in the 1998 MUA dispute. 1997
Gordonstone
(Qld)
Construction Forestry Mining and Energy Union (CFMEU) ARCO illegally sacked 312 CFMEU members at Gordonstone. Miners lost jobs and entitlements. The workers have maintained a picket line at the mine for a record period in coal mining disputes to no avail. ARCO sold the mine to Rio Tinto which employs non-union labour. October 1997
Patricks
(National)
Maritime Union of Australia (MUA ) MUA members lost conditions and jobs through redundancies. Labour hire firms were made insolvent by their parent company, Lang Corp. 1998
Skilled Engineering(Vic) AMWU Workers lost their jobs at Johnson Tiles, replaced by scab labour from Skilled Engineering. Many were charged with criminal offences arising out of a picket and subsequent destruction of property. Craig Johnston, state secretary of AMWU, was jailed in 2004 for nine months. 2003
Boeing Australia at Williamtown (NSW) Australian Workers Union (AWU) Maintenance engineers denied the right to collectively bargain by the employer, the courts and the government 2005
  • 1. The Law Relating to Industrial Action prepared by the Faculty of Law at Monash University for the Royal Commission into the Building and Construction Industry (2002) at page 55.
  • 2. For example s45D & E of the Trade Practices Act (the secondary boycott legislation) was used against the Transport Workers Union and at the same time two rank-and-file members of the same union were facing Federal Court action under the Workplace Relations Act. (B. Dowling in Big Rigs published by Queensland Times on May 1 1998)
  • 3. AMIEU v Mudginberri Station Pty Ltd (1987) 74 ALR 7.
  • 4. Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104.
  • 5. Australian Competition and Consumer Commission website @ http://www.accc.gov.au/content/index.phtml/itemId/87244/fromItemId/37800....
  • 6. The Law Relating to Industrial Action prepared by the Faculty of Law at Monash University for the Royal Commission into the Building and Construction Industry (2002) at page 31.
  • 7. For the bosses account of the strategy used against the meatworkers in South Australia see The Industrial Significance of the Live Sheep Export Dispute by David Trebeck published by the HR Nicholls Society.[/url]

    Meatworkers defied the injunction and continued to picket. Elders tried to move the sheep but were unsuccessful.

    Farmers did not rely solely on the court to defeat the meatworkers. The exporters moved ships to another port where there were no pickets and farmers loaded the sheep onto the ships themselves.

    Meanwhile in Queensland the state government placed 600 police on Brisbane's Hamilton wharf to remove meatworkers and their supporters picketing against live export of cattle. Under orders from the then Premier of Queensland, Bjelke-Petersen, police aided by the special branch arrested 45 picketing meatworkers while truckloads of cattle were driven onto the wharves.From recorded report by Howard Sacre Channel 0 Eyewitness News, October 1977.

  • 8. For a workers account of the live export dispute: “Norm Hughes was Bothwicks shed president (Bothwicks is a meatworks at Murarrie in Brisbane). He was the state treasurer of the meatworkers union i.e. on the executive. Norm was a boner on the job too. Norm understood workers and knew how to iron out anomalies. This rare ability came out of Norm’s long meat industry experience. Even the bosses knew it! Commissioner Gough (from the Arbitration Commission) knew it! In fact it was Gough who advised the bosses whenever they had bottle neck to bring in Comrade Hughes at the bosses’ expense to try to resolve the problems.” — taken from notes by comrade Jim Sharp, retired rank-and-file meatworker and unionist, Brisbane, 2007.
  • 9. Thanks to Jim Sharp, a retired rank-and-file member of the AMIEU, for the Vanguard article reproduced here.
  • 10. Labour Law – an introduction by Creighton and Stewart Federation Press 2000 3rd Edition at p422 in [13.100]
  • 11. Ibid Labour Law
  • 12. Ibid The Law Relating to Industrial Action at page 16.
  • 13. Treasurer Peter Costello: Government amendments to the Trade Practices Act 1974 from National Institute of Accountants Technical Advantage Magazine 16 March 2007
  • 14. Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40 2 September 2004
  • 15. These are fees paid to unions (n this case) for negotiating an enterprise agreement. It was proposed by Mighell that non-union members should paid these fees before getting the benefit of such union negotiations.
  • 16. Union loses fight to charge non-union workers Sydney Morning Herald September 2, 2004
  • 17. The WorkChoices legislation was announced by the Australian Government in October 2005 and enacted in March 2006. This summary of the WorkChoices legislation is taken from Awards, Minimum Standards and bargaining after WorkChoices – a presentation given by Margaret Lee at the Workers or Slaves: Strategies of Resistance against Work Choices at a Brisbane Labour History (BLHA) Conference on 25 February 2006.
  • 18. After her presentation at the above BLHA conference given by Margaret Lee provided the following notes: ‘Under the earlier Workplace Relations Act 1996 there was provision, in theory at least, that unions could always bargain upwards from the wages and conditions set by existing awards which are now regarded as a safety net. Interestingly there was never any test case in the AIRC that defined exactly how the NDT was to be applied. Was no worker to be worse off or were the conditions for workers across the board not to be undercut. In practice there were trade-offs where some conditions were improved at the expense of others despite the power of the AIRC to refuse to certify an EBA where workers would be disadvantaged by the loss of those conditions traded off. During the nine years of its operation under the WRA 1996 AIRC took a conservative stance preferring to stay on side with government and employer than to support the rights of workers.’
  • 19. The advantages and disadvantages of each strategy are analysed in Chapter 5 “Courses of Action”.
  • 20. POISONOUS CAPITAL—the ‘boon’ of the Eight-hour day: 150 years on — a presentation at AHIMSA house in Brisbane on 3 March 2006
  • 21. Destruction of labour rights Changes to industrial action and right of entry laws Terri Butler BLHA Conference, 25 February 2006
  • 22. BushTelegraph @ http://bushtelegraph.wordpress.com/2006/10/28/not-guilty.
  • 23. From Building industry taskforce’s publication on Secondary Boycotts in The Building And Construction Industry
  • 24. Ibid
  • 25. Affray is a charge where there is unlawful fighting or unlawful violence used by one or more person against another, or there was an unlawful display of force by one or more person without actual violence.
  • 26. QLD CFMEU State secretary (Mining division), Andrew Vickers at the Brisbane Labour History Association conference 12 March 2005.
  • 27. Understanding Australian Industrial Relations by Robyn Alexander and John Lewer, Harcourt Brace Jovanovich, Sydney, 2nd edition 1992
  • 28. Victorian AMWU stewards unanimously back leaders at http://www.greenleft.org.au/2002/506/27611 (URL checked 31 December 2006) and What is Workers First? here (URL Checked 31 December 2006)