There were 2 dissenting judgements, one by recent government appointee, Callinan J, who ruled in favour of the appellant (Patrick) to the effect that the orders of the Federal Court should be set aside. The other dissenting judge, Gaudron J, ruled in favour of the respondents (MUA & Ors) to the effects that Patrick's appeal should be dismissed with costs.
The majority judgement (remaining 5 High Court judges) ordered that the North orders be varied to make them `without prejudice to the powers of the Administrators' of the Patrick labour companies. The union was also required to indemnify the Administrators against losses.
While both sides claimed a victory from the decision, it is significant that Patrick was ordered to pay the costs of the MUA and the administrators.
The decision is designed to maintain the substance of the North orders, but remove a conflict between the orders and sections of the Corporations Law which prohibit an insolvent company from trading. As with North, Patrick is forbidden to engage labour from sources other than the 4 Patrick labour hire companies under administration, and has to restore the labor supply agreements it had with those companies. The difference is that the administrators now have the power to determine whether the companies would resume trading, and on what basis.
In a significant statement, Treasurer Peter Costello, announced that he would ask the Australian Competition and Consumer Commission (ACCC) to examine the effect of the duopoly on the Australian waterfront on efficiency. Costello, a rival with Reith for the Liberal leadership post-Howard, seems to be distancing himself from the Reith position.
However, ACCC chairman Alan Fels said he had no power to deal with duopolies.
Chris Corrigan announced that Patrick will provided the Administrators of the labour hire companies the $3.65 million necessary for them to restart operations. It is believed that the Patrick holding companies owed the labour subsidiaries some $16 million. If Corrigan had not agreed to come up with the money, the administrators may have liquidated the Patrick labour hire companies, leaving Patrick without any labour. The company would then have had to go before the Federal Court to seek permission to use other labour, and try to explain why they had let their labour hire companies be wound up.
Patrick has apparently reversed a decision to close its Tasmanian operations, but intends to close other operations, including Newcastle.
Reith states that the government will only fund redundancies on the waterfront if the MUA's `monopoly' is broken.
John Coombs stated that the MUA does not have a `monopoly', but has legitimate coverage of waterfront employees, who join the union of their own free will. He states that none of his members will return to work unless all return. He stated that the MUA will then negotiate productivity improvements and redundancies. He said that the union had previously agreed to 200 redundancies at Patrick prior to the lock-out.
One of the Administrators, Peter Brook, stated that he intended to abide by the `spirit' of the North orders, presumably meaning he favours a simultaneous return to work by the MUA workforce. This will presumably be followed by negotiated downsizing of the workforce necessitated by the decline in shippers using Patrick.
The major fly in the ointment remains Reith, who controls the redundancy fund, and who may insist on the employment of some of the non-unionists, in order to reignite the dispute.
Donald McGauchie, the former NFF president who controls the non-MUA (a.k.a. ` scab') labour hire company, PCS, stated that his workers would be withdrawn from the docks, but would be available to work through the four Patrick labour hire companies if needed. However, he will have to offer free workers and money to undercut the MUA, who have offered to work for no pay for at least the first two weeks until the companies have established a cash flow.
Reith met with the Administrators this morning and reportedly told them redundancy money will not be made available unless they employ some non-unionists.
Later, MUA officials meet with the Administrators.
Late this afternoon, it was announced that the Administrators would reinstate all 1400 MUA employees. During 3 hours of negotiations, the union refused to budge from its position that all the workers must be reinstated. The administrators say some job losses will be necessary, and Coombs has promised a flexible approach to productivity changes.
The workers are expected to go back to work tomorrow. This will coincide with a day of action in Victoria in support of the MUA.
The first of 184 unionists and supporters arrested in Brisbane 2 weeks ago have appeared in court. They face fines of $3,000.
Lang Corp shares rose to $1.74 from its post-lockout low of $1.66 reached on Friday.
This evening, Fynwest directors Mike Wells and Peter Kilfoyle, organisers of the Dubai training fiasco, contradicted Reith's claims that his staff had not been involved in the planning of the scheme. They also stated that Corrigan had offered them free airline tickets in order to get them out of the country while the conspiracy case was being heard. Wells produced a diary referring to meetings with government adviser Stephen Webster.
Guards and their dogs remain on Australian wharves this morning. Corrigan has stated that he has jobs for only 600 workers.
The MUA stated they will not go back to work while the security guards are there, and will go to the Federal Court to have the orders enforced.
The MUA will also seek orders in the Federal Court ordering Patrick's banks to deliver up loan agreements which the union believes will show complicity by the banks in the scheme to dismiss the unionists.
The MUA will also apply to have the Administrators of the Patrick labour hire companies removed. The motives implications of this move are not yet clear.
In a busy day, MUA officials will also meet with ACCC lawyers in a bid to have the actions by the ACCC dropped in the light of the High Court decision.
The MUA has won a decisive victory, owing largely to the clever strategies of the union leadership, led by ACTU assistant secretary and former MUA official Greg Combet. The union leadership refused to fall into all the traps set by the government/employer combination, and worked assiduously to mobilise public opinion against the government. By confining the dispute to Patrick's wharves and the courts, the unions reduced the space in which the government could manoeuvre, while the campaign of non-violent civil disobedience was an unqualified success except in Queensland, where police were able to clear the protesters.
Elements of the daily press are attempting to salvage a government/employer victory by emphasising the likely concessions that will be wrung from the MUA. But the fact remains the MUA has survived intact, and the object of the exercise was clearly the destruction of the union.
John Howard has claimed otherwise, that the objective was waterfront reform, but his argument is not logically consistent with neo-liberal ideology, which insists that unionism is incompatible with labour market liberalisation. For the neo-liberals, then, the exercise has been a total failure, and a massive falling-out can be expected in employer/government ranks, as already seen by the Fynwest allegations.
But the dispute is far from over. The possibilities are dizzying. Reith's plan to reignite the dispute appears to have failed, for the time being. It is the desperate action of a desperate man. Conspiracy in an industrial dispute, according to the precedent set in the 1891 Shearers' Strike, is worth 3 years hard labour. Howard will probably sideline Reith, so that the government can switch public debate to tax and other issues in preparation for an election.
Some analysts speculate that Patrick and the MUA will negotiate a settlement. On the other hand, the unionists desperately want Reith, Sharp Corrigan and the others in court, so they will demand a very high price to drop the actions. I'm not going to make a prediction. Watch this space.
Webster, the government adviser on waterfront `reform', was paid $95,000 for a 2 month consultancy prior to joining the staff of the department. Webster is reported to have a Ph.D in naval history. Despite the government's stated enthusiasm for competition, no tenders were called for the contract. Any Australian industrial relations academic could have given the government better advice for less than half the cost.
Stuart Svensen
National Key Centre in Industrial Relations, Monash University
Level 8, 30 Collins St, Melbourne, Vic 3000 Australia
Ph: 61-3-99038708 Fax: 61-3-99038710
