Standing Fast

Gaoled for Breaching the Award

Barry Hammonds and Graeme Haycroft

Part I: Barry Hammonds

Until Troubleshooters style Labour Hire Contracting, all shearing in Australia was conducted under awards. Queensland has its own, the Shearing Industry Award - Queensland. Elsewhere shearing operations may be subject to a Federal award.

The Queensland shearing award was first developed in 1911 and though concessions have been made for electricity and septic toilet systems, little else has changed other than the amounts that must be paid to workers. It has been believed that both State and Federal awards do not allow shearing on weekends (though the Federal award will, if it has rained), and believed that to do so is a breach punishable by prosecution, fine, and subsequent gaol if the fine is not paid. The was also thought that the award also, rather curiously, mandated that before anyone started shearing they had to sign an agreement (a form of contract) that bound both the employer and the employee to do a given amount of work. The non-completion of that agreement, it was thought, was in itself an offence and ostensibly meant that any shearer who left a shed before the end of the job could be prosecuted for breach of contract. Best said is that those thoughts belonged to another era. Most alarmingly, though, the award specifies considerable capital expenditure by graziers in order to comply with it.

For instance, whilst it doesn't mandate that the shearing shed be built, it does say that the grazier must supply the shearing gear which, presumably, must be in a shed, and also allocates the shearer certain space in that shed. It also specifies the provision of wool-presses, shearing quarters to a mandated standard, and bathroom and laundry facilities which, incidentally, Government house would not be able to achieve. For instance, the floors of the bathrooms must be made of concrete. There must also be separate ablution and toilet facilities for women.

The award, quite frankly, is unworkable and no-one actually works to it. Apart from specifying the amount and types of food that workers must eat, the provision not of washing machines, mind you, but coppers in the laundry, it also requires that bells be rung before shearing starts and finishes, clocks must be on the wall in designated positions, and any number of other quite silly little rules which may have had some basis in reality 90 years ago but today are observed only in the breach.

But the Australian Workers Union (AWU) has, of course, used this as a marvellous recruiting system. Because it's not possible for anyone to actually shear economically under the award, and in order that the shearing operations can be conducted without people going broke, blind eyes must be turned. The price for the blind eye, of course, is that every worker in the shed must be a member of the AWU. When this happens, any amount of award breaches can be condoned without prosecution. If, however, any contractor or grazier has the temerity to use non-union labour he can count on being prosecuted. You may remember, a South Australian shearing contractor, Graham Bruce, was prosecuted at Charleville, along with all his men, for shearing on a Sunday in February 1992. None of his blokes were members of the AWU. It's a fairly effective method of ensuring that the AWU membership remains strong in the shearing industry.

The very worst thing that can ever happen to them, because their members view them in the same light as most other union members view their unions, is that if free choice in the matter was actually given, then the vast majority of workers in the wool-handling industry would not be members of the AWU. So the award underpins the recruiting mechanism for the AWU.

The wide combs dispute was one of the first attempts by the shearers themselves to bring some sanity into what is, at best, an inefficient, silly industry. The AWU's view is that God created only so many shearing jobs and that any attempt to make the operation more efficient would mean less jobs for its members. Now there's nothing secret about this, in fact the AWU has been promulgating this particular view since time immemorial. On that basis of logic, shouldn't we return to harvesting wheat by hand? The only thing that's mystifying about it is why the employer associations have not destroyed the argument totally. Be that as it may, back in the early 'Eighties, when the first New Zealand shearers came over here with their wider combs, and cutters which were 50% wider again (92mm as against 62mm) they were able to shear sheep at thirty to fifty percent faster than with narrow combs. Fundamentally, this is what the wide combs dispute was all about. It wasn't about evil Kiwis or dangerous wide combs, it was simply that by introducing a technological improvement the number of jobs available to AWU members was reduced. This subsequently was the case and it's estimated that some 20-25 percent of shearing workers left the industry as a result of the efficiencies introduced during the wide comb dispute.

These efficiencies quite dramatically benefited graziers, in that shearing was done more quickly. Half of a shearing team are on day labour, the other half on piece work. If more sheep are shorn in a day, then the job is done quicker and it is not necessary to pay the day labour people for as long. Fundamentally, that is the saving. It is this simple mechanism of efficiency improvement, together with all workers in the shed being on piece rates rather than day rates, that has enabled our contract labour teams to reduce shearing costs by about 10%, whilst still paying workers more. (See Appendix 2).

In 1988, I took over another contractor's run of about 40,000 sheep, purchased it, and have since built it up to over 250,000. In June 1990 I was found with a shed-full of non-union workers at Minnie Downs and warned I would be prosecuted for not signing them on. It should be noted that almost no-one, repeat no-one, signs anyone on to these agreements.

The agreements are designed to protect the employee from the employer. However, they are seldom used, and viewed as a waste of time by most people in the shearing industry. Dudley Watson, District Secretary for the AWU, visited Minnie Downs Station during shearing in June 1990. The purpose of his visit was to sell union tickets, but nobody was interested in buying. Dudley then made up a list of all the breaches of the award we were committing there, such as:

  • Failure to have separate toilet facilities for the female cook, although it was not required to have them for the female shedhands. This meant I would have to cart, to and from sheds, a portable ablution unit for one person.
  • Failure to have a copy of the Award posted in a convenient and conspicuous place, and other such 'major' offences. We even had the clock hanging in the wrong place.

A couple of weeks later I met Dudley Watson at the AWU premises in Charleville, where he proposed that if I were to make it a condition of employment that all my workers joined the AWU, charges would be dropped. There are two witnesses to this. I told Dudley I would not force people to join his union if they didn't want to.

In between the time of Dudley Watson first coming to Minnie Downs and the subsequent summons in May 1991, we were found shearing in another shed, New Cashmere, at St George, by Goondiwindi AWU representative, Larry Arnold. The purpose of his visit was also to sell union tickets, but nobody wanted to buy. Again, we were not signed on and in March 1992 I was summonsed for this second offence.

During this period, the AWU needed to inspect all my wage records and wanted names and addresses of all employees who had been in my employ. I supplied this information and was told that M. Smith, of Wairoa, NZ, did not comply with Section 15.5 of the Industrial Relations Act 1990-1991. They then requested pay advices detailing starting and ceasing dates, where they were employed, all Christian names and full addresses. A lot of this information had been lost during the 1990 Charleville floods. After a letter-writing campaign between both parties, their requests fizzled out.

Shortly after that, on 30 June 1992, I was again in court for our failure to sign-on at New Cashmere. This was regarded as my second offence, with no previous, as I hadn't been prosecuted for the first offence when I committed the second. I was fined $768.75. I refused to pay and was subsequently arrested and jailed for four days in the Charleville lockup in October 1992. I had already spent two days in gaol for the first offence in 1991.

In May 1992, we were shearing at Pendine Station and, as we were trying to keep to a tight schedule, we needed to work part of a weekend, so we were in agreement to work on Sunday. Suspicions must have arisen about our activity, because Bill Paton, AWU representative for Longreach, paid us a visit. He was shocked that we were working on a Sunday and informed me I was the ruination of the shearing industry. He wanted to know the names and addresses of the people working there, solely for the purpose of prosecuting these people for working. I refused to give him this information, so he asked each employee and they also refused to tell him.

A couple of weeks later Dudley Watson appeared at my home, demanding the names and addresses of the employees working at Pendine Station. I again refused and in July 1992 we received summonses for breaches of Sections 12.1, 12.2, 12.3, 12.4, 15.3 and 18.38 of the Industrial Relations Act 1990-1991.

When this matter eventually went to court we were charged under Section 15.3, which is 'failure to have and to make available time and wages records to an authorised person from the AWU'." We fought this charge in court, using excellent local solicitors, Skewas & Dempster, instead of the UGA industrial officer who traditionally conducts these cases, and gained our first victory. Sixty-five graziers turned up to support us in court and attend a luncheon afterwards. It was this day that the UGA support from Vice-President Marcus Arthur was solidified although later contradicted by his staffers. (See Appendix 5). Since that time the AWU gained information from town gossip, and they summonsed me in March 1993, proceeding with the charges for permitting employees to work on a Sunday in May 1992 (See Appendix 3) at Pendine Station, for not signing them on, and for not having a copy of the Award posted in a convenient and conspicuous place. This case is to be heard on 24 May 1993 in the Barcaldine Court, just down the road from the Tree of Knowledge.

On Friday, 7 August, at the Charleville Railway Hotel known locally as 'The Rocks', the Troubleshooters' team was drinking in the lounge bar. AWU union official, Dudley Watson, was in the public bar. One of the team, Manuel 'Doobie' Smith, went into the public bar, thought he heard himself described as a scab by Watson, went around the bar to see if he heard correctly, and collected a king-hit from Watson, requiring medical treatment. Police were called and Watson was subsequently charged with assault the day after the Queensland State election on September 21. His charge was dismissed on October 13, and AWU official, Gary Ryan, then claimed Troubleshooters were deliberately trying to attack the union, claiming the charge was frivolous.

Part II: Graeme Haycroft

Now to the introduction of the Troubleshooters Available (TSA) system. But before doing so, it's important to note its background.

TSA is a labour-hire firm which operated in the building industry, principally in Melbourne, from 1976. They supplied contractors to builders on a daily labour-hire basis. They were black-banned by the building unions in 1985 and Troubleshooters principals, Peter Bosa and Brian Groves, took the BWIU to the Federal Court alleging breaches of Sections 45D & E of the Trade Practices Act, and also breaches of Common Law. As the case progressed, the National Farmers Federation (NFF) took an interest and were persuaded to lend considerable moneys to enable the fight to go through to fruition.

This subsequently happened, and an appeal to the High Court was refused, effectively making the ODCO Pty Ltd case (ODCO traded as TSA) a High Court decision and, if you like, clearing the way for widespread application throughout Australian industry. Presumably the NFF saw its potential in rural Australia, although subsequent events demonstrated that the NFF's affiliated Queensland body, the UGA, were not as unanimously prescient.

At the time I was first contacted by Barry Hammonds in December 1991, I was consulting with the Queensland Confederation of Industry (QCI) and was there when the proposal was originally put. In terms of my consultancy, I determined that the introduction of the TSA system, which involved payment of some fees by Hammonds, should indeed be run through the QCI, in accordance with my agreement with that body. The QCI didn't want to upset the AWU, so the QCI and I parted company, fuelled also by the complaints from the UGA about me to the QCI.

The NFF advised that, in order for the system to be applied in the shearing industry, it would be wise to gain the support of the UGA Queensland State President, Bill Bonthrone. A direct approach was therefore made to Bonthrone in writing, advising what we proposed doing. He was subsequently advised by his industrial relations officer that labour hire contracting couldn't work in Queensland, and much as they would love to see its introduction, it wouldn't be viable and would be challenged in court and we would lose.

We then struck a deal with Bonthrone on a very simple basis, since it seemed to us the determination of what is legal should be made by legal practitioners. So Bonthrone agreed and set the condition, which we think was entirely reasonable, that if the solicitors for the NFF gave it the all-clear under Queensland Law, then he would recommend the UGA support it.

Opinions were then gained from McHenry Harris, the NFF's solicitors, with David Russell QC providing the Opinion with specific respect to Queensland Law. The opinions of these eminent legal people were that there were no obvious constraints to the promulgation of a labour hire contracting system in Queensland, and that any attack against it under any specific Queensland law would be unlikely to succeed and that graziers could not be prosecuted.

At a meeting with the UGA on 28 May 1992, at Warwick, at which some of the NFF Executive were present, these Opinions were presented but, presumably in spite of the support from Bonthrone, the UGA decided they would reserve their support until they obtained their own opinion. This was peculiar because the first Opinion had been gained specifically for them, in terms of our understanding with Bonthrone.

Notwithstanding all that, Hammonds and I travelled on to Charleville to talk with Hammonds' shearers to ascertain if they were interested in the possibility of introducing a labour-hire system, and whether they would go along with it and support it. For historical purposes, the meeting was video-taped by Caloundra dentist and amateur videographer, Mal Myers.

Subsequent to this, the local AWU official, Dudley Watson, soon found out about the strangers preaching heresy and decided that attack was the best form of defence by launched into a rather vigorous assault against us on ABC radio. But rather more cleverly, he decided that the Australian Tax Office should be brought into the matter and they obligingly wrote quite scary and rude letters to both Hammonds and myself, based entirely upon hearsay, warning us about the penalties that could be involved and what actions they would take should we suggest in any way that people not have PAYE tax deducted. (See Appendix 4)

The ATO, through one of their enthusiastic officers, a Ms. Lynette Chilcott, even went on ABC Longreach radio making all sorts of pronouncements about how PAYE tax would have to be deducted, that what we were doing was incorrect, which was rather interesting because at that stage we hadn't even started. The documentation hadn't been fully finalised, nor had the systems, in fact all the ATO's attacks were based entirely on hearsay provided by the AWU officials.

Interestingly, we subsequently met with the ATO and it was resolved that we would make voluntary deductions from the shearers' pay, as we had proposed, and simply forward the moneys to them through the PPS system. There endeth the ATO problem. There wasn't then, and there never has been since, any attempt to avoid income tax.

It became important, though, to create a high profile for the introduction of the system. And indeed to take it right up to those who would oppose it because at that stage we were on our own, the UGA still not having obtained their own legal opinion. So, on Saturday, July 4, a public meeting was called in Charleville (just after the Hammonds' court case on 30 June) where, ostensibly, Hammonds and I would call for recruits for the contract labour system. It was well attended, with well over 100 people yelling and debating, but interestingly the AWU officials, who had been invited, decided they should not be there, that they would prefer to attend an ALP function being held at Corone's Hotel across the road on the same day, though oddly not at the same time.

The meeting was highly successful, making wonderful TV, and certainly positioned us in such a way that it was very difficult for the accusation to be sustained that we were sneaking in to do something untoward.

However, our launch was almost scuttled because the grazier whom Hammonds had lined up for the first shearing under the contract system the following week, a well respected and courageous grazier, named Lionel Roberts of Victoria Downs near Morven, had, quite reasonably, contacted the UGA industrial officer to check that it was okay, only to find that "concerns about the system's legality" had been raised and the UGA were still in the process of checking it out. To his credit, Lionel Roberts came in from Morven to meet with us and he was reassured by Vice President of the UGA, Marcus Arthur, by 'phone, that to allow us to shear his sheep would not be against the interests of the UGA and Marcus pledged the resources of the UGA to support Roberts. The matter was then resolved with Warren Turner, the UGA industrial officer who, wittingly or unwittingly, had so managed to rattle Mr Roberts earlier, and we were over the next hurdle. Queensland graziers owe a genuine debt of gratitude for the principled example set by Lionel and his family.

We then proceeded to shear his sheep, which was a day of great excitement with all sorts of rumours flying that union officials were expected with teams of people with baseball bats---God knows where they'd get them from out there---to clean up everybody in the shed. Thank goodness the ABC were there to film it all. Anyway, of course nothing happened. The union official, Dudley Watson, who had publicly threatened to come out and prosecute us, didn't turn up, and our team happily sheared on.

I left on the Wednesday, and on the Thursday the then Industrial Relations Minister for the Government announced that this dispute should be resolved in the Commission. It was a curious thing to say, because there was no dispute, just the disaffection of the AWU officials that someone should have the audacity to do something they didn't approve of.

Notwithstanding that, an Order for Compulsory Conference was then issued upon Hammonds Pty Ltd, the shearing contractor, to attend with the AWU and the UGA. What transpired then, after some advice, was that it was important to develop a strategy in conjunction with the UGA to meet this challenge in the early stages. It was felt, then, that it would be wise if we used the same barrister, i.e. Russell QC, and the UGA's solicitors. Over a period of two days, we were advised it was okay to use the UGA solicitors, then it wasn't, then it was, then it wasn't, and finally, two hours before the proposed Commission appearance, it was. We respect solicitors' rights and obligations to ensure there is no conflict of interest in these situations, but, in retrospect, the indecision was quite comical and not, I might add, the fault of the solicitors.

Suffice to say the advice was that we should not attend the Compulsory Conference at all, but simply have the matter of the jurisdiction tested in the Supreme Court. This particular strategy had the advantage of:

1. Having the matter resolved immediately, and quite favourably on our terms, with no facts to suggest that the people involved in the shearing were anything other than contractors, or
2. Forcing the union to back down totally on the issue, thereby ending it.

However, when this advice was duly given, the UGA officials, for reasons known only to them, felt that they should attend the Compulsory Conference anyway, as a courtesy (whatever that means). Of course when they arrived they were advised that "compulsory attendance" wasn't required, despite what all the documentation had said, and that it was really an "optional conference'. Therefore our opportunity to have the matter tested in the Supreme Court, with all the facts in our favour, and no opposition was lost. As was the opportunity to have the union publicly back down.

One of the conditions of these Conferences is that you are not allowed to get a copy of the transcript unless you give an undertaking of confidentiality. The UGA therefore felt this precluded them from showing it to Hammonds or me, although Hammonds is an affiliate UGA member. The solicitors felt a conflict of interest had arisen, so the common view strategy was defeated and from then on we were alone again.

I decided to attend the second Compulsory Conference, not only out of curiosity as to what the dispute was about, but to obtain a transcript of the previous meeting. In hindsight, had I known the contents, it's doubtful that I would have gone at all. The transcript was given reluctantly by the Commission, under pain of silence. It was better to know where we stood at that particular stage. Following this, a further date was convened for a Consultation meeting, or something like that, with the AWU and the UGA. What is probably more important is that once the Commissioner had left, the union were able to put their demands, and they went something along these lines. 'We suppose, if we were in their shoes, we would have done the same. We are simply a competing business interest to them, and they wanted to get rid of us.'

Their proposition was:

Are you going to go away?

Answer:

No. We want to have this matter tested.

Answer:

Fine, why don't you black-ban Lionel Roberts's wool? They said "No". Then why don't you take us to the Supreme Court for a declaratory ruling? They said "No". Well, how about taking us to the Charleville Magistrate's Court on the facts of the matter at Victoria Downs? To which they replied, "No", they were old facts. (In other words they didn't have any new facts.)

What they really wanted was for us to set up a test shearing so they could send in the state government's industrial inspector to decide whether the workers were employees or not. In other words, they didn't want to jeopardise AWU funds, but rather use taxpayers' money to fight their battles. The UGA officers in attendance were not in opposition to this proposal. We then left, without disclosing what we would do. We did, however, make a public announcement that we would look favourably on the test shearing. It had occurred to us it would be good to have the media there, and, when it was later suggested, probably in jest, that Mark Stoneman should be there shearing as well, I thought it was an excellent proposition. After all, since Stoneman was the State Shadow Minister for Industrial Relations, if anyone was going to be prosecuted it wouldn't be a bad idea for it to be Stoneman, along with the rest of the team. To his credit, Mark, who was fully aware of the ramifications, agreed to set a lead.

At this stage the UGA had finally got their second legal opinion from Murdoch, the barrister who normally acts for the AWU and BWIU. The opinion has been kept secret, but it does, we were told, "express some doubts". Who knows? With the NFF's policy being that of backing winners, and only if a state affiliate, like the UGA, recommends it, you don't have to be Solomon to realise our position. With the UGA holding a secret opinion which purportedly didn't support us, but ostensibly confirmed the original view by the UGA industrial officer to Bonthrone earlier in the year, the likely outcome for NFF legal fund support, should we find ourselves under legal attack, was not promising. We had no alternative but to keep the matter public to raise the political price of punitive legal action against us.

So on August 22 we set up Saturday shearing at Alan Denton's property, Hillgrove. Current Affair attended, Mark Stoneman came out and sheared a few sheep, and the Industrial Inspector arrived and investigated the whole proceedings, subsequently deciding (one presumes, because this was over eighteen months ago) they would not prosecute us. It made colourful TV with 15 or 20 cranky union shearers standing by and protesting, ultimately more about the AWU union official not turning up than our shearing on a Saturday. In effect, we took it to the brink and they blinked. The opportunity is now past for the government and, one would think, for the unions, because since that time we've been able to shear without any harassment. It's curious to note that all union action taken against Hammonds was for offences prior to him using the TSA system, not after.

It is an interesting side issue that in early August 1992 we received notification from, of all people, the UGA, that one Joseph Ludwig, son of Bill Ludwig, Secretary of the AWU, had registered the name Troubleshooters Available on 10 July 1992 (See Appendix 6). We fell about laughing. After all, what on earth could they ever do with it? It was about late September that we wrote to Joseph reminding him of the law relating to "passing off", and they subsequently cancelled their registration, and we picked it up. As we had previously been unable to register the name because a Gold Coast firm used it, Joseph's string-pulling ultimately helped us.

In order to really clarify the UGA's position, UGA Vice President, Marcus Arthur, at the time of Hammonds' trial in December for "failing to produce time and wages records", (which incidentally we won) made clear unequivocal public statements to the media that the UGA would defend the legal principle of the labour-hire system. Quite rightly, he did not endorse Troubleshooters Available as a commercial firm, which we didn't want anyway, but he made it abundantly clear that any legal attack would be met with the UGA and NFF fighting funds. (See Appendix 5). If this had been done on Day One, the whole exercise could probably have been done quietly and without controversy. There would have been no TV, no media, no drama, just a quiet revolution in the shearing industry.

In no way is there to be implied in this paper any criticism of the elected executive of the UGA, who were simply embroiled in the technicalities of competing advices but who consistently appeared publicly to support our reforms. Ironically, however, the December 1992 issue of the UGA bi-monthly magazine, "The Grazier", reported the December Charleville meeting, together with a statement from Marcus Arthur to which had been added, without his knowledge (we checked):

" ... with the UGA's support remaining qualified by the outcome of possible litigation, as the legal questions are still being considered by the Crown Law Office". Marcus Arthur said no such thing. This was a "helpful" addition by a UGA staffer. (See Appendix 5)

Before closing, we should look at what costs have been saved and how much shearing has been effected under subcontract. The matters relating to the saving of capital have not yet started to come into the equation, because shearing sheds and shearing quarters are already there. But over the next ten years, with non-award shearing, it will become possible, in some situations, for the contractor to arrive, literally, with a shearing operation on the back of a truck---pretty much the same as some crutching operations arrive now---put up a marquee, run out some transportable yards, then proceed with having the team of shearers, who have arrived in caravans with their own cookhouse, get on with the job of shearing the sheep, using laser shearing devices. Who can predict what innovative people will come up with if they are only allowed to?

Further to this, when one considers that the methods used by shearers today are little changed from that of 100 years ago, the whole technology of shearing can now be changed. Laser shearing has been developed; it cuts wool more cleanly, and with little physical effort.

But the Wool Board couldn't see the potential, and, after two pittance grants for research, diverted resources to chemical and robot shearing, both of which are possibly nothing but expensive mirages. We may still see the day when shearing will be done entirely mechanically, but it would be some time off. But if wool removal apparatus is brought into the twentieth century, or should I say twenty-first century, then it should be possible for one shearer to shear, on average, about 300 sheep a day, which is double the amount they do today.

Most graziers would have $200,000 capital tied up in woolsheds, quarters, etc, but used only 3 weeks a year. If you compute the annual holding cost of this largely unnecessary capital expenditure and divide by an average number of sheep, say 10,000, then you arrive at a hidden capital cost of around $3.00 per sheep per year. Add then the contract shearing price of $3.00 per sheep and you have a total wool removal cost of about $6.00 per sheep. But without 'award shearing' and the constraints it imposes, over a period of time this cost could be cut in half. And as wool removal cost is one of a grazier's biggest expenses, reform here will significantly affect the wool industry viability.

The Hammonds team have already been able to shear sheep in the order of $2.70 each (about 10% less), whilst also ensuring that the payment to the workers, in every case, is more than they would ever have earned under the award. (See the Appendix for some comparisons.) Obviously, reducing the price of shearing isn't about cutting the earnings of workers but about making the whole operation more efficient, and that's what the labour hire contracting system has allowed to happen. None of these efficiencies can be contemplated under the Award.

In summary, despite the support of the graziers and what appears to be the support of the elected UGA executive, there is still a long way to go. Graziers who ring the UGA about where they stand if they use labour hire contracting are still advised by their Industrial Department that "whilst they support in principle, they cannot recommend that members use us (TSA) until we are proven legal". Damned with faint praise! The latest UGA Annual General Report devotes three pages to "Industrial", but nothing about labour hire contracting systems which, by any measure, is the most significant change to industrial relations in the shearing industry since the introduction of the Award. Not one item in those three pages in any way suggests that graziers' costs will be reduced by the UGA's industrial activities. No mention at all of a strategy to eliminate all the impediments to efficient capital usage and slash wool removal costs. Sad really.

So, considerable work still has to be done to convince the graziers themselves that they are not going to achieve the results they want through the traditional industrial relations system, but only through the free market of contracting. We hope we can achieve these reforms before the wool industry dies.

Meanwhile we battle on.

8 December 1993

Part III: Graeme Haycroft

Postscript

Prior to our paper being delivered in Canberra in May 1993, we knew Barry Hammonds would be appearing at the Barcaldine Magistrate's Court on 24 May 1993 and presenting a 'not guilty' plea for the three charges brought against him for alleged breaches of the Queensland State Shearing Award prior to using the TSA labour hire contracting system. The charges were:

i) permitting shearing on a Sunday;
ii) permitting shearing without first signing shearing agreements;
iii) failure to post the Award in a prominent place.

We felt it was important to demonstrate that the whole Rural Industrial Relations system was in fact held together by the foolish compliance of the United Graziers' Association with union dictates, and that the penal provisions of the now infamous Award were virtually unenforceable if you forced the union to actually prove the facts rather than just conceding them. So, even if graziers wanted to continue using employment relationships instead of subcontract ones, commonsense would prevail and changes to expensive and efficient work practices could, in practice, occur.

Our strategy was quite simple: go to the spiritual home of the union movement and Labor Party two days before the centenary of the Labor Party's formation, under the Tree of Knowledge at Barcaldine, and achieve a win for the real workers by demonstrating that the AWU couldn't fight its way out of the proverbial wet paper bag and that the traditional submissive strategy of the UGA was simply flawed. They were too easily bluffed. This meant winning not only on the facts, but having a legal argument prepared, just in case.

So, with the media lined up, we arrived at Barcaldine with our "trump card", David Russell QC, to represent Hammonds. Russell volunteered his services on this issue and although his appearance had been a fairly closely kept secret, it was let slip in good faith by a local grazier to the local United Graziers' Association representative on the day before the court case. Within 2 hours I was advised, by the media, that the local Longreach AWU district representative had been told. Perhaps they didn't feel we should have too much advantage.

On the first charge, before the local Magistrate, senior counsel, David Russell QC, quite brilliantly noted that the 1990 Queensland Industrial Relations Act had introduced changes that meant certain Awards could be interpreted differently. Thus, from the moment the Goss Government passed this Act, shearing operations by contractors (not graziers) were legal on weekends, although penalty rates would apply. Prior to that, the Award was properly interpreted as totally disallowing weekend shearing.

On the second charge of permitting shearing without shearing agreements being signed, he argued this was never meant to be applied to shearing contractors, but was designed by construction to always apply to the owner of the sheep. On that basis, Hammonds had previously spent at least six days too many in jail, and the whole recruiting mechanism of the AWU was underpinned by a furphy.

The third charge was frivolous anyway as the Award, which was supposed to be posted, had to be at Hammonds office, if anywhere; not at the shearing shed.

As it subsequently turned out, the AWU could not produce evidence to actually prove anybody had been shearing on a Sunday, nor that shearing agreements hadn't been signed, so the legal questions weren't ever considered. This was absolutely the best possible result for the graziers and shearers because it demonstrated that these punitive provisions are virtually unenforceable, illustrating that, in future, even if the AWU could actually prove the facts of the case, the legal arguments could come into play and the charges would be dismissed anyway. The AWU faced a hiding for nothing.

In practice, the result has meant that any attempt by the AWU to stop weekend shearing is now so remote that graziers, contractors and workers can negotiate commonsense weekend cutouts (that's where shearers finish the job on a weekend rather than stopping on a Friday and returning on the Monday to shear just a few sheep), secure in the knowledge that they are virtually beyond prosecution. Further, shearing contractors can no longer be coerced into forcing their workers into the AWU against their wishes. It's still fiddling at the edges but a vast improvement on the status quo.

Had the Barcaldine decision been decided on the legal questions it would have been a pyrrhic victory anyway, because the AWU would have just trotted into a compliant Industrial Relations Commission and got the Award amended to negate the win. They would have simply argued that the Award doesn't mean what everyone thinks it does, and custom and practice suggest the wording should be changed to reflect that. And, on past performance, the United Graziers' Association would have been unlikely to have mounted any worthwhile opposition. The net result would have meant absolutely no change. Hardly in anyone's interest.

On September 16th, Russell QC and I later explained to the United Graziers' Association the ramifications of this quite landmark decision, and suggested that their best tactic would be not to say nothing and let perceptions work to their advantage. Within seven days a news letter came out stressing that the case had proved nothing, that shearing still could not be done on weekends, and that although they "supported the Troubleshooter principle, (they) couldn't support it in Queensland until it was tested in law". Defeat was snatched from the jaws of victory.

We did, however, subsequently manage to obtain the "secret Opinion" which supposedly cast doubt on the legality of Troubleshooters in Queensland, and the reason it had been kept secret became immediately obvious; the UGA's barrister actually supported us. He agreed graziers who use the system could not be prosecuted, but the UGA had been publicly saying the precise opposite.

Whether or not a legal challenge to the labour hire agency would succeed or not is irrelevant to potential client-users of the system. The issue that was most important was whether any potential client-user (i.e. UGA member) could suffer any liability by using the proper applications of labor hire contracting. On that point the UGA's barrister said, inter alia, that graziers could not be prosecuted. However he did say, that on the off-chance that the agency TSA was prosecuted, anybody associated with the counselling, procuring or aiding us in committing an offence might also be prosecuted. Whilst this provision might in rare circumstances apply to, say, an industrial officer who was actively promoting us, it would never in practice apply to a grazier.

Graziers either just use the system or watch as their contractors use it. It was therefore extremely mischievous to suggest that there was a chance of graziers being prosecution if they used labour hire contractors. But as the Opinion was kept secret, of course we had no way of knowing that we were being misrepresented in this way. I felt we were getting nowhere being nice to the UGA, so we had nothing to lose by openly criticising them in the hope that we'd get a public airing of the correct facts.

In December, capitalising on grazier dissatisfaction with the UGA endorsement of Keating's Mabo legislation, I attacked the UGA, drawing the analogy from Mabo to Contract Labour that their decision was unrepresentative and against their members' interests. All the main rural media featured the story. The response from UGA President Bonthrone, and UGA Industrial Officer Turner, was very hostile. Any pretence of labour market reform for their members was abandoned in an attempt to sabotage my credibility, and, by implication, that of Hammond's agency. It was essential to respond publicly to the incorrect things they said about us. After all, the purpose of the exercise was, as I said, to get a public airing of the facts so that the UGA members could know what had been going on.

I therefore authorised the publication of a solicitor's letter quoting Queen's Counsel opinion on the UGA's position (See Appendix 9). Again all the main rural media ran it. This must have been acutely embarrassing to Messrs Bonthrone and Turner because it exposed the indefensibility of the UGA position and clearly showed they had, presumably unwittingly, been misleading their members. It vindicated our stand and was absolutely irrefutable.

In summary, based on the facts assembled in this paper there's no escaping the sad conclusion that at a time of maximum crisis in the wool industry, when any sort of cost-saving labour market reform should have been supported, the UGA simply used marginal doubts about the legality as, at best, an excuse to do nothing for 18 months. By contract, there wouldn't be one union official in this country who, if faced with a similar situation, would not have marched full steam ahead and damn the consequences to further (as they would see it) the best interest of their members.

The graziers of Queensland owe a debt to the Hammonds of Charleville who achieved, by their quiet example of intelligence and fortitude, what the graziers' own association simply could not, or would not do. Potentially the most significant change in the pastoral industry work practices was introduced without bloodshed, without traditional IR goo-ha, without crippling strikes, without hugely expensive court battles, without high level political grandstanding.

Give me ordinary people with ordinary values any day. I'm, proud to have been able to help Barry & Moera Hammonds do their bit, and whatever it cost me in time, sweat, tears and money was well worth it.

I'd do it again tomorrow.

Appendices:

1. Chronological order of events.
2. Comparison of rates paid to Hammonds team -v- the Award.
3. Summons for Sunday shearing at Pendine Station.
4. Copy of letter from Australian Taxation Office.
5. Copy of 'doctored' report in the UGA magazine.
6. Copy of the Minutes of a meeting, to evidence what Marcus Arthur actually stated.
7. Copy of Registration of Business Name by AWU official, Joe Ludwig.
8. UGA branch Newsletter, June 1992, giving the UGA position (or its officer's opinion) on Troubleshooters Available.
9. 'Troubleshooters row resolved'; Queensland Country Life, 3/2/1994.
10. P W Skewes & Dempster letter to the Editor QCL, January 26, 1994.
11. "Shear delight as the ties have it", The Australian, 9/9/1993.

APPENDIX 1

Chronological order of events

1988 Hammonds became a shearing contractor.
June 1990 Hammonds found shearing at Minnie Downs without signing workers on, failure to have separate toilet facilities for female cook, failure to have award posted in convenient and conspicuous place, failure to have clock in correct place.
July 1990 Hammonds met with Dudley Watson before two witnesses, and Watson offered to not proceed with prosecution if all Hammonds' workers joined the AWU.
April 1991 Hammonds found shearing at New Cashmere station without having signed on workers.
May 1991 Summons served on Hammonds for the June 1990 breaches at Minnie Downs.
July 1991 Prosecuted for the Minnie Downs offence and fined $640.
August 1991 Two days jail at Charleville lockup for refusing to pay the fine.
December 1991 Hammonds responded to NFF article and was referred by them to Haycroft.
February 1992 Haycroft started to process agency arrangements for Hammonds in accordance with QCI guidelines.
Approach made direct to Bonthrone by Haycroft for support for the introduction of the system.
Haycroft and QCI parted company, after complaint fuelled by UGA.
Arrangements made with Bonthrone that Hammonds and Haycroft would, at their expense, gain legal opinion on the issue for the UGA.

March 1992 Summons served on Hammonds for the April 1991 offence at New Cashmere station.
May 1992, 10th Hammonds found shearing at Pendine Station on a Sunday.
28th Meeting at Warwick whereby UGA decided McHenry Harris and Russell QC's opinion not good enough and UGA's own opinion needed.
30th First meeting of Haycroft with Hammonds' shearers at Charleville.
June 1992 2nd AWU first warned of Troubleshooters being illegal.
9th Threats from Australian Taxation Office.
25th Letter from Haycroft to Bonthrone advising of the 4th July national media story, that the media would probably want to know UGA position, and suggested it may be wise to gain the second legal opinion.
June 1992 30th Hammonds convicted in Charleville Magistrate's Court for April 1991 New Cashmere offence.
July 1992 4th Meeting at Charleville Town Hall to launch Troubleshooters Available.
6th First contract shearing at Lionel Roberts' Victoria Downs property. Though invited, union officials did not attend.
9th Supposed "Compulsory Conference" at Queensland IR Commission. Contrary to advice, UGA attended. Haycroft and Hammonds did not.
10th Information supplied to UGA solicitor so he could finally brief barrister Murdoch for the UGA second opinion.
Joe Ludwig registered the name Troubleshooters Available.
14th Optional conference at IR Commission, attended by Haycroft to obtain transcript of July 10 conference.
NFF's Graham Blight made it perfectly clear on national media that they support Troubleshooters Available.
20th Closed meeting with AWU and UGA at IR Commission where proposal was made to set up test shearing.

27th UGA General Manager, David Moore, advised that the Murdoch opinion on the efficacy of Troubleshooters Available in Queensland was unavailable for perusal, but advised that it cast doubts and graziers who use the system might be persecuted.
August 1992 9th AWU's Dudley Watson initiated a brawl with Troubleshooter shearer, "Doobie" Smith.
22nd Current Affair camera team recorded first legal weekend shearing in Queensland at Alan Denton's Hillgrove property at Morven, where Mark Stoneman sheared some sheep. The Industrial Inspector attended, as did some 20 'award' shearers to protest. Nobody from the AWU attended.
September 1992 l9th Labor government re-elected in Queensland.
21st Dudley Watson charged by police with assault.
October 1992 14th Dudley Watson cleared of assault charges.
Hammonds to gaol for four days after refusing to pay fine for offence committed at New Cashmere, April 1991.
December 3rd 1) Hammonds trial at Charleville Magistrate's Court for Sunday shearing offence at Pendine, May 1992. AWU lost.
2) UGA Vice President, Marcus Arthur, made unequivocal media statements guaranteeing UGA support of the Troubleshooters Available system in the event of legal attack on the principle.
3) Marcus Arthur chaired local meeting of sixty-five (65) graziers who travelled to Charleville in support of Hammonds at his trial.
4) Charleville was, and still is, in the throes of a dreadful drought, but it rained that day. A motion for support of the system was carried unanimously.
January 1993 UGA December issue of "The Grazier" released, qualifying the unanimous support for graziers of Troubleshooters Available but inferring it may still be illegal (See Appendix).

March 1993 UGA annual report came out devoting three pages to industrial matters, but not one line about Troubleshooters Available.
13th Federal election won by the Labor Party.
26th Summons served on Hammonds for offences allegedly committed at Pendine Station, May 1992.
May 1993 24th Hammonds pleads not guilty to charges, which will be heard, sometime in July, probably at Barcaldine, across the road from the "Tree of Knowledge".

Postscript:

August 1993 30th Hammonds cleared of charges for award breaches at Barcaldine.

September 16th Meeting at UGA offices with D Russell QC to explain ramification of Barcaldine decision and the true position of graziers who use Troubleshooters or have their contractors use Troubleshooters. UGA legal opinion surfaces.

26th UGA Newsletter published rebutting Russell QC's opinion by claiming that great doubts still existed about the legality of Troubleshooters and pointing out that weekend shearing is not possible and, in effect, the Barcaldine Court case proved nothing.

December 8th Article in media by Haycroft claiming that UGA was misrepresenting Troubleshooters to its members.

APPENDIX 2

(Reproduced)

WAGES COMPARISON OVER

40 DAY PERIOD

SUB CONTRACT AWARD
PER DAY PER DAY
Shedhands $123.73 $86.91
Woolclasser 184.23 130.00
Woolpresser 223.02 166.02

These figures have been work out over a 40 day period.

The sub-contract ones are an average for that period.

SHEARERS ON PER HEAD BASIS

Shearer $1.40 $1.36

(Please go to Contents page for more Appendices.)

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