Unions fined hundreds of thousands of dollars
under Trade Practices Act

Bob Briton

Last week the Federal Court imposed penalties totalling $300,000 
on three unions for what it found to be violations of Section 45D 
of the infamous Trade Practices Act 1974. The Australian Workers 
Union (AWU), the Australian Manufacturing Workers Union (AMWU) 
and the Electrical Trades Union (ETU) were also ordered to 
implement a "trade practices compliance program" and to publicise 
the details of the Court's findings in their respective 
journals.

The harsh and humiliating decision resulted from a case brought 
by the Australian Competition and Consumer Commission against the 
unions who the ACCC held responsible for the mounting of a 
community picket on the site of the Patricia Baleen gas plant 
near Orbost in Victoria between October 2 and 23, 2002. 
Proceedings had previously been instituted by Transfield 
Constructions, the company contracted by Austrian petrochemical 
giant OMV to build the $120 million gas plant.

The protest at the development began when the future operators of 
the plant, Upstream Petroleum, refused to negotiate certified 
contracts for workers with the relevant unions and employed non-
union labour under Australian Workplace Agreements, instead.

ETU Victorian State Secretary Dean Mighell pointed out at the 
time that Upstream was planning to pay workers $350 a week less 
than their counterparts performing the same work in other parts 
of Victoria.

Workers refusing to cross the picket were ordered to do so by the 
Australian Industrial Relations Commission. Unions complied with 
AIRC directives and ordered the workers back to work. But still 
the community picket held.

Transfields then took the matter to the Federal Court, seeking to 
have the AIRC orders enforced. Tony Abbott, the then Minister for 
Workplace Relations, intervened to back up the case against the 
unions. "It's a strike against the national interest and that's 
why the federal government's involved", he said.

His real interest in the case was to set an example and lay the 
boot into three of the most militant unions and exclude them from 
the new plant.

On November 20, 2002 the Court ordered an end to the picket but 
that was not the end of the matter. The ACCC then took up the 
cause in the Federal Court, insisting that the actions of the 
union violated Section 45D of the Trade Practices Act(TPA) — the 
section dealing with "secondary boycotts". It was considered a 
secondary boycott because the target of the action was not their 
employer, Transfields, but the petroleum company, in support of 
its future workforce.

The penalties handed down by Justice Gray last week were "at the 
very highest end of the range appropriate for conduct of this 
kind", as he put it. In addition to the sanctions mentioned 
above, an injunction was placed on the unions against respecting 
community pickets at any other land-based gas processing plants. 
The Justice noted that contempt of court could be added to future 
sanctions.

The announcement was met with glee in pro-boss circles. Ken 
Phillips of the Institute of Public Affairs led three cheers for 
the Trade Practices Act:

"The Patricia Baleen case and the experiences of many firms show 
that the WRA [Workplace Relations Act] is not effective, because 
orders under the act are routinely ignored. Without the force of 
the TPA, competition would systematically be rorted."

ACCC Chairman Graeme Samuel, a Howard appointee who recently 
replaced Alan Fels, also likes a firm application of the Act: "I 
also welcome the court making both injunction and compliance 
program orders as they may reduce the risk of future 
contraventions and will ensure the unions better appreciate the 
effect and scope of the Act."

In 2000, the International Labour Organisation of the UN 
responded to complaints from the ACTU, the Maritime Union of 
Australia, the International Confederation of Free Trade Unions 
and the International Transport Workers' Federation about the 
behaviour of the Federal Government during the Patrick's dispute 
in 1998.

Among its recommendations, the ILO advised the Federal Government 
to take "necessary measures", including amending the Trade 
Practices Act, to ensure that workers can take sympathy action.

It also recommended that changes be made to Australian Workplace 
Agreements so that they do not undermine the right to bargain 
collectively.

Of course, the Federal Government did not take the 
recommendations on board and had no intention of jettisoning some 
of its favourite anti-worker legislation. The decision of the 
Federal Court last week and its warm reception in government and 
business circles is another two-fingered salute to the United 
Nations and its labour organisation.

It is another step towards a corporate state where unions are 
powerless to defend workers' interests. Clearly, the 
effectiveness of community pickets during the MUA dispute still 
stuck in the bosses' craw. The latest Federal Court decision 
gives wealthy elites hope that this method of self-defence will 
finally be denied to the people.

Furthermore, the Howard Government and many of its employer mates 
want to extend current legislation so as to treat industrial 
action by employees of contractors as secondary boycott action 
against the company that the contractor is providing labour for.

Mark Latham has committed a future Labor Government to 
transferring the offending sections of the TPA to the Workplace 
Relations Act where it might give unions a breathing space and a 
chance to halt action and avoid massive fines.

When the Hawke Government took similar action, it gave the trade 
union movement some relief, but did not safeguard unions from the 
Act for ongoing action or against failure to carry out court 
orders.

The sections of the TPA on secondary and primary boycott actions 
should be repealed, once and all. The trade unions will only 
achieve this with an all out struggle against the legislation.