The Australian Competition and Consumer Commission today instituted proceedings against the Maritime Union of Australia alleging breaches of the boycott provisions of the Trade Practices Act.
The ACCC has instituted proceedings now because it believes there have been serious and continuing breaches of the Act by the MUA, which the union has made no effort to address.
The ACCC has alleged that the MUA has: taken steps to get the International Transport Workers Federation and its affiliates to organise and implement an international ban of ships, and shipping lines, loaded or unloaded with non-MUA labour in Australia; threatened ships, and shipping lines, that they would be the subject of such bans if they used Patrick, PCS or other stevedores using non-MUA labour; organised a campaign of domestic boycotts of Patrick operations because it used non-MUA labour, including: withdrawal of labour for tugs and lines to impede ships berthing at Patrick; and blockading Patrick to stop transport companies delivering and picking up cargo from Patrick.
The ACCC alleges that this conduct was done for the purpose and with the effect of stopping Patrick and other stevedores using non-union labour from engaging in international trade or commerce, in breach of the primary boycott provisions of the Act. [The ACCC does allege other breaches of the Act]. The MUA has not taken any steps to respond substantively to the ACCC's previously expressed concerns in relation to either the domestic blockade activity or the ITF threat.
The proceedings will seek: urgent injunctions in relation to the alleged involvement of the MUA in international boycott activities in conjunction with the ITF; declaration that the domestic blockades, refusal to work tugs and lines and the ITF international boycott actions breach the Trade Practices Act; findings of fact (which would enable business suffering loss or damage from the MUA conduct to seek damages); and permanent injunctions restraining the MUA from engaging in relevant primary and secondary boycott action.
The proceedings also name MUA national secretary, Mr John Coombs, and Mr Trevor Charles, an MUA official and the Australian International Transport Workers Federation representative, as respondents. The ACCC concerns include: the impact on competition on the waterfront where boycotts hinder both new and established businesses from operating; that a large number of businesses have sustained significant losses due to their inability to gain access to cargo which was stranded in containers on docks around the country. In some cases cargo has been irreparably damaged; and damage to Australian exports, and Australian export businesses.
Boycott conduct by the MUA appears to be continuing. Since the High Court decision there has been further alleged boycott conduct by the MUA in Newcastle and Adelaide, where vessels have been held up by picket lines unless or until the shipper or shipowner agrees to using labour chosen by the MUA, eg in some ports work is not done unless done by firms using former Patrick's labour. I
t is also relevant that a number of vessels which were loaded by non-union labour during the dispute have been subject to boycotts and harassment by affiliated unions overseas. The ACCC has been particularly concerned by the Columbus Canada boycott in the United States. Furthermore there are real prospects that domestic picket activity and ITF bans may increase to the detriment to Australian importers and exporters.
The ACCC conveyed its concerns to the MUA over both the domestic boycott activity and ITF threats at an early stage in the dispute. Despite repeated requests, the MUA: has failed to provide any explanation as to why its conduct does not breach the Act; has failed to guarantee that it will not engage in such conduct again; and appears to be engaging in new conduct which may breach the Act.
Publicly, the MUA's initial response was to accuse the ACCC of harassment and to state that if the ACCC believed it had a case it should take proceedings. Privately, the MUA requested the ACCC not to institute proceedings and asked for more time to prepare a substantive response. The ACCC agreed to this request.
No substantive response has been provided. The MUA has not provided any assurance that its Federal Court undertakings "not to take industrial action" cover the boycott conduct of concern to the ACCC. At all times the ACCC has been willing to meet with the MUA to discuss its concerns and also to provide the MUA with extensive material outlining its concerns. The ACCC always reserved its position to take legal proceedings.
The failure of the MUA to address the ACCC's concerns has led the ACCC to institute proceedings at this time. At all times the ACCC was conscious of not taking precipitous action, particularly when issues were before the Federal Court and High Court of Australia. The ACCC considers that the current action raises a significant trade practices issue between the ACCC and the MUA; it does not bear on the dispute which exists between Patrick and the MUA.
The ACCC is taking this action as the Trade Practices Act applies equally to the MUA as it does to any other organisation in Australia. The ability of the ACCC to achieve pro-consumer results in many areas would be crippled if it started making special exceptions in defiance of clear Parliamentary intent. Other investigations The ACCC continues to investigate a number of competition issues on the product market side of the waterfront.
These include the contractual arrangements between Patrick and PCS, particularly any side agreements associated with the lease of facilities; possible anticompetitive agreements between Patrick and the former Port of Melbourne Authority which came to light during the OOCL litigation; alleged 'no poaching' agreements between stevedores; a protocol that existed allegedly between the Australian Wheat Board and the ITF; and transfer of contracts from Patrick to other stevedores.
There are also other investigations in progress on the labour side, including boycotts in relation to hold cleaning. The matter has been set down for first hearing at 10.15am on Wednesday 27 May in the Federal Court, Sydney.