Trade Union Reform
Consensus or Confrontation---Is there a Difference?
This paper expresses a personal viewpoint and does
not necessarily reflect the views of my organisation.
I also want to make it clear that in generalising
about trade unions I do not ascribe to all unions the
attitudes and actions which I instance as problems
in our community.
I work in an industry that has encountered widely
different attitudes and conduct on the part of unions
with which it deals.
There are unions, usually small, industry-based with
a declared non-political philosophy whose membership
and officials are closely identified with the objectives
and problems of the industry in which they operate.
It is not to, or about, them that I direct my comments
but rather to the ruthless and destructive elements
in the many unions which have led hundreds of thousands
to the dole queues and brought us to the brink of economic
We are considering today a phenomenon which, while
not unique in this country, nor unusual in many Western
democracies, is no less of great and growing concern
and which has some elements peculiarly Australian.
As a subject in itself trade union power would normally
claim the attention only of practitioners and academics
and, by and large, that was the position in this country
up to a couple of decades ago.
It is inadequate to explain the current general level
of interest and concern as merely a function of the
incidence and effect of unions taking direct action
and the inconvenience factor on larger numbers in the
community, the appalling strike of Victorian nurses
There is growing evidence of the concern, not only
of the great majority of the population, who are not
union members and by and large would never voluntarily
join a union, but also of an increasing number of rank
and file union members, about the nature of trade unionism,
about its public image, about its centralism, about
the current nature and consequences of its political
links and above all about its leadership.
In the latest issue of the IPA Review Peter Costello
expresses a view I also hold that there is, in his
words, 'widespread and deep distaste for the kind of
unionism that has evolved in Australia,' and he goes
on to substantiate this from recent surveys which show
83% of all Australians are opposed to compulsory unionism,
78% believe trade unions have too much power and that
68% of union members share that view. An earlier national
survey found that 79% of Australians believe trade
unions should not support any one political party.
The Editor of the Review comments in a footnote that
by contrast, in the U.K., the law requires that a majority
of the membership, by ballot, must vote in favour of
political affiliation and even then all such activity
must be financed out of separate contributions which
individual members may opt out of without detriment
to their entitlements.
In the current debate the Costello article is a most
comprehensive and thoughtful contribution and has deservedly
been accorded widespread coverage in the press.
The ACTU admits that it has an image problem with
the public at large and concedes that unions have a
communications problem with their own membership.
Ironically it will be a source of more rather than
less concern when those two problems have been 'fixed'
because you may be sure the causes will not have been
eliminated, merely the perceptions of them by means
of skilful cosmetics.
Our subject today merits urgent consideration not
only because of the state of the economy, in which
the unique power of trade unions in this country is
critically important, but also because of broader and
deeper consequences for our social fabric of the unfettered
aggregation and exercise of great power in the hands
of a small number of ruthless autocrats.
The concern I have as a partisan participant in the
industrial relations arena is far outweighed by my
concern for the wider effects on the nature and quality
of society as a whole.
The rise of Germany from the ashes of 1919 in a mere
20 years - only as long as the period since Menzies
retired as Prime Minister of Australia - was a remarkable
phenomenon and the mere six years that the Nazi Party
had from 1933 to 1939 in which to suppress a civilised
society and build the most powerful war machine then
in existence, was the subject of general disbelief
by the majority until it was too late and would have
been a considerable feat even with today's technology
half a century on.
How such a relatively small band of thugs could so
quickly and easily take control of an entire nation
and do it in the name of national socialism is one
of the chilling lessons of history. For my generation
there is no more unforgettable benchmark with which
to compare the growth of a power elite in our own society.
Now it is a fact that unions in this country have
not merely equal status with other groupings but also
enjoy preferential treatment under many headings.
Unions great and small that are registered under the
Conciliation & Arbitration Act are income tax exempt.
At least five have memberships well in excess of 100,000
and thus enjoy multi-million dollar annual tax free
revenues. The ten richest have assets of $120m - a
sixfold increase in ten years, and if the ACTU's plans
mature, this will multiply, as in Argentina, through
their control and management of superannuation funds,
to the point where they could influence, perhaps even
control, capital markets in this country.
Great wealth, in addition to the great power that
already exists, requires effective protection of the
community, more especially where that power is concentrated
in a few hands.
There has been, until recently, a community attitude
towards trade union leaders akin to that towards politicians.
They are at best an inevitable if not especially welcome
part of the landscape. This uncritical tolerance, so
far as the former are concerned is beginning to change
despite the best endeavours of the media to present
them through rose coloured lenses.
Industrial relations tribunals have also contributed
to the process of sanitizing, normalising and laundering
the ugly face of trade unions by treatment ranging
from highly selective tolerance to overtly discriminating
bonhomie. After all these are their non-captive customers
who have been assiduously wooed for the past 30 years
and must be kept happy and loyal.
That there are, and always have been, good union officials
as well as the other sort is not questioned. Albert
Monk, for whom the community rightly had a high regard,
was the pre-eminent example.
Since Monk's day all manner of things have changed,
here and abroad, and many of our current problems are
Many that are universal are nonetheless products of
the same causal factors, while some are home grown
and very much attributable to new and different attitudes
and objectives and the methods of achieving them, by
a new class of non-rank and file, opportunistic ideologues
in leadership positions in our unions. Such people
have never had the benefits and disciplines of real
jobs either on the shop floor or in management and
have not faced the rigours of commercial accountability
and the need to make a profit in order to stay in business.
The usual goal for such people is power, either to
be wielded for its own sake, or in order to buy preferment,
usually in the political arena.
The effect on the trade union movement and thereby
on the community of this new class has been wholly
disproportionate to their numbers and intrinsic worth.
The current state of our nation and where it is headed
should make us think about whether, and if so how,
it could ever be reversed if it were to reach the condition
of Sicily or the city of New York both, ineradicably
it seems, under the influence of powerful extortioners
who reap great benefit for their own interests at the
expense of the rest of the community. Do not unions
in our society exhibit the same features as the Mafia?
We are rightly anxious about many threatening aspects
of modem day life at the global, regional, national
and neighbourhood levels, and in relation to the observable,
definable and controllable aspects, we want something
done about them.
What is increasingly troubling more and more people
is the way in which our society is insidiously threatened
by the intrusive growth of the State, the bureaucracy,
and more importantly, of trade unions or more correctly
of the Mafia of union leaders.
Paradoxically, it is not only the lunatic fringe on
the extreme left nor even the thugs and muscle-men
who intimidate employers, other union officials or,
not infrequently, members of their own unions, that
should worry us. Like many of today's leaders of 'the
Mob' who, with the proceeds from extortion rackets,
have invested in and operate legitimate businesses
in the U.S., it is also the unions' respectable merchant
banker look-alikes who, like their New York counterparts,
may constitute the greatest threat to our society.
These are the apparatchiks, the movement's bureaucratic
It is these people, like Germany's archetypal propagandist
Dr Goebbels, who are so effective at selling plausible
solutions and in our case the slick, but phoney, options
like consensus, as alternatives to confrontation.
The parallels with the Nazi's propaganda machine and
what it led to will doubtless be met by the response
that it can't happen here, we're a free country, we
have the right of free speech, freedom of religious
observance, we have free elections, a free press, an
independent judiciary and free trade unions, all of
which at least guarantee that no one grouping can pose
a threat to democracy here. Yet measured by the standards
of the times the same could have been said of Germany.
At a time when political and economic centralism is
rampant and when deals between the industrial and political
wings of the labour movement are continually being
hatched, it would be quite naive to be comforted by
those superficially plausible notions.
Uniquely in this country we have the organic link
between the trade union movement and the Labor Party
which is, at best, a mixed blessing for both of them
and at worst an anti-social alliance that, as Peter
Costello points out, is detrimental to both of them.
Having regard more especially for the fact that many
unionists do not vote for the Labor Party and remembering
the tax-exempt status and other official privileges
enjoyed by registered unions, the law should afford
the same right to individual members as in the U.K.
and preferably make the absence of political affiliation
the precondition of tax exemption.
Free trade unions in a free society should not be
permitted to cut down the freedom of choice of those
who do not want to join them, nor of those unionists
with different political views who do not want to subscribe
to the political party of the union's choosing.
A past President of the ACTU was fond of telling us,
on his frequent returns from vigorous sojourns in Geneva,
that by comparison with the rest of the world, the
licence exercised by those very free trade unions is
a small price to pay for all the other benefits of
our free democracy. Such statements were usually coupled
with the specious enhancement that it should be remembered
that Australian unionists and their families
constitute a majority of the population (sic) and accordingly
those unions represent the will of the majority.
The danger and the fallacy of that simplistic assertion
can be demonstrated in several ways but few have done
it better than two great thinkers of our age, Professor
Hayek and Lord Hailsham.
It does wholly inadequate justice to them to quote
selectively but the aptness of their philosophy to
the widespread and mounting anxiety about the growth
of the State within a State that is trade unionism
in this country today is quite compelling and too important
for me to eschew.
One of the conventional myths relied upon by the trade
union movement and assiduously peddled by members of
the Industrial Relations Club, regardless of affiliation,
is that there is consensus on the basic ethos of Australia
as an egalitarian society and that, in some unexplained
way, this equates with our concept of democracy. It
follows, so the argument runs, that the pursuit by
trade unions of their own special-interest objectives
in the manner of their choosing is a legitimate activity
towards the consensual objective that is not proscribed
either by law or social mores.
Hayek believes that democracy, in its true and original
sense, is well worth fighting for, but equally argues
that 'it has not proved to be a certain protection
against tyranny and oppression.'
He said the 'wholesome method of arriving at widely
acceptable political decisions has become the pretext
for enforcing substantially egalitarian aims.'
He goes on to argue that our problem is the emergence
of 'unlimited democracy', which to a greater or lesser
extent is what Western democracies are, and that in
them the old ideal of the 'Rule of Law' or 'Government
under the Law' has been destroyed by the omnipotence
of governmental bodies.
He said to call 'law' everything that the elected
representatives of the majority resolve, and to describe
as 'Government under the Law' all the directives issued
by them - however much they discriminate in favour
of, or to the detriment of, some group of individuals
- is a very bad joke.
'Arbitrary oppression - that is, coercion undefined
by any rule by the representatives of the majority',
he says, 'is no better than arbitrary action by any
other ruler. '
Hayek of course was talking about the State, but the
principle is equally applicable to that other 'State
within a State', the trade union movement which engages
in arbitrary oppression, externally against society
and against those it demands should join its ranks,
and internally against its membership, especially minority
opinion. To talk of achieving its compulsory union
objectives by true consensus is nonsense, just as it
is nonsense to equate internal union management and
control over members with Hayek's 'Government under
the Law' concept.
Even where union elections basically conform with
public election practices it is quite impracticable
for an unfinanced, unresourced rank and file member
to stand against the official ticket.
Governments claim a mandate for all their policies
because they hold office by consensus. Union Leaders
claim a mandate for their actions for the same reason
and justify them by the endorsement of the rank and
file on the additional but inadequate argument that
particular activities were determined upon by a simple
It is in the nature of things that even the most objectively
presented alternatives under those circumstances -
and on all accounts that is extremely rare - will not
present the rank and file member with all the potential
options and the likely consequences of each.
Thus the will of the majority, the consensus, on what
is to be done is arrived at without regard for the
rules of the organisation, the laws of the land or
any other appropriate frame of reference. We are therefore
dealing with highly centralised, autocratic, authoritarian,
repressive and intolerant organisations.
The confrontationist mode is the natural order of
things in the labour movement. Numbers will beat policies
every time. True consensus is not natural to its thinking.
In this sense unions are examples of Hayek's unlimited
or lawless democracy.
In his 'Dilemma of Democracy' Lord Hailsham discusses
the social and ethical questions which underlie the
debate about power and freedom in a democratic society.
Hailsham contrasts and compares the political and
social choices open to the free democracies. Against
'centralised democracy or elective dictatorship' he
sets and advocates the alternative which he describes
as 'the theory of limited government or the belief
in freedom under the law.'
He pulls no punches in characterising the forces opposed
to his concept of limited government which latter,
he says, stands between the various forms of authoritarianism
of the right and the left.
He is talking essentially about the difference between
totalitarian socialist economies and Western democracy
but also about the alternatives open to us within Western
'Within the democracies, side by side with deliberate
violence and crime of the ordinary kind, blackmail
by pressure groups leads to anarchy and anarchy to
dictatorship..... anarchy and permissiveness are part
of the same process as tyranny'.
The centralised democracy 'if permitted to pursue
its ends to the ultimate will aim at a rigid economic
plan, a curbed and subservient judiciary and almost
certainly a regulated press.'
'It will impose uniformity in the interests of what
it will claim to be social justice. It will insist
on equality in every sphere and because for it equality
is dogmatically identified with justice it will distrust
and seek to eliminate all forms of distinction (which
it will misname elitism or even eccentricity).'
'It will depend greatly on caucuses and cadres to
enforce its will and in its perfected form will
attempt to achieve single party government. It will
pursue political patronage to its ultimate extent...'
The alternative of this, 'freedom under the law',
he says 'offers what its rival denies'.
'While, like its rival, it is based on universal suffrage
and popular sovereignty, it offers diversity in place
of uniformity. In place of rigid equality, it offers
justice, not seeking to deal out equal rewards and
penalties on equal sets of facts.'
'In place of an impersonalised 'common good' it sees
the public interest in the protection of rights alike
of minorities and individuals.'
Lord Hailsham asks why the propaganda of the left
continues to find support when it 'denigrates the virtues
of a society so obviously superior or at least so manifestly
more tolerable' than the various forms of authoritarianism
of the left and the right. He believes the causes are
not economic, that Western democracies are 'halting
between two inconsistent opinions regarding the purposes
and limitations of democratic government itself' and
he does not propose there should be a compromise between
them because he believes them 'to be respectively true
and false, just and unjust, good and bad', in other
words incompatible with each other.
'Upon the progress of their encounter I believe that,
given the relative absence of international conflict,
the politics of the free world will largely turn in
the next twenty-five years, and upon the outcome of
that encounter the success or failure of democracy
will be decided for generations to come. So long as
we halt between the two opinions I believe that we
shall continue to fail in our efforts to persuade the
world either of our good intentions or of our practical
ability to overcome our problems.'
'Though they are ultimately incompatible, there is
at first glance much in common between the two doctrines.'
'Each claims to be democratic. For each the word democracy
involves the statement that sovereignty, whatever this
may mean, resides in the wholeadult population.
Both assert that they are libertarian. Both claim to
pursue the interest, and probably genuinely wish to
achieve the welfare of the people. Both, at this stage,
at least in the West, repudiate the cruelties of the
dictators. Yet they are ultimately incompatible.'
There are those in the community, many within the
ranks of employers, who have no difficulty accepting
our current industrial arbitration system which is
subject to pressure from the economically strong, is
manipulated and improperly influenced from sources,
and by considerations, quite irrelevant to the justice
of the issues before it and which frequently functions
without objectivity or intellectual integrity in the
belief that to do otherwise would cause it to become
an irrelevant anachronism.
It has been said by the naively well intentioned that
industrial arbitrators should not make decisions that
are likely to be unacceptable to union leaders. Hailsham's
reply is that:
'There is no merit whatever in obeying a law which
enjoins or prohibits that which respectively you would
wish to do or refrain from doing anyhow. The only law
which there is any merit in obeying is that restraining
you from doing what you would otherwise wish to do
or which makes you feel compelled to do what you would
otherwise refrain from doing. There is no advantage
whatever in a law which simply restrains the weak.
Law is important precisely when and so far as it restrains
the ruler and the powerful group, whether that ruler
is one man, a class of men, or an anonymous majority
of common men, and particularly when it is a representative
government of politicians elected for four or five
years and having only a limited period of rule in prospect,
and whether the powerful group is the trade union,
a religious denomination or the adherents of a political
'Liberty under the law is the banner of the West.
Failure to remember and pursue its precepts is the
thing in principle which permits anarchy and brings
tyranny in its wake.
'The task before the liberal democrat is always the
same. It is to prevent tyranny by promoting laws which
foster and institutionalise freedom and protect the
rights of individuals and groups, and in particular
which foster freedom and protect those rights by subordinating
governments and powerful organisations and individuals
to the precepts and restraints of law.'
Hailsham was not of course addressing the question
of labour market deregulation or the question of whether
or not the restraints of law should include industrial
tribunals but the conceptual relevance of that philosophy
to the subject we are considering is, I believe, blindingly
The pressing present need to subordinate powerful
organisations and individuals to the law is illustrated
by the fraudulent nature of the ACTU Secretary's recent
claims of trade union compliance with the Arbitration
Commission's wage fixing principles when attempting
to defend and excuse the current campaign of intimidation
and blackmail in support of superannuation claims.
Paragraph 6 of Principle 3 of these so-called Principles
includes the requirement that in order to obtain the
Commission's approval of agreed new improved superannuation
benefits, employers' consent to union demands must
During the National Wage Case now in progress, and
in response to employer complaints about strikes in
support of superannuation claims, Mr Kelty was asked
by one of the seven members of the Bench 'Are you saying....that
in effect the affiliates of the ACTU are complying
with the terms of Principle 3?'
Kelty's answer was: 'We say that they are complying
with Principle 3, they are complying with Principle
3 absolutely.' He went on to qualify out of existence
that unequivocal response and included in it the assertion
that anyone who believes industrial negotiation to
mean that industrial action is precluded 'will get
the first prize for stupidity.' This of course was
a none too thinly disguised sneer at the Commission's
last National Wage decision in which it ineffectually
said strike action in support of superannuation claims
would be 'unnecessary'.
Thus Kelty would have us accept that all the companies
that have succumbed to the fact, the threat, or the
correctly perceived likelihood, of being bled dry through
strikes, and have conceded union claims, genuinely
consented to do so, and he said as much. 'In any process
of negotiation parties have different views. They come
to reach agreement. When they reach agreement consent
is genuine.' At this the Bar table and the public gallery
spontaneously broke into laughter at the sheer effrontery
of such a statement.
The Commission's only reaction to Kelty's brazen belligerence
was to observe that he had been 'charmingly frank'.
This is the kind of consensus we are exhorted by the
union movement to choose in preference to confrontation.
Is there a difference?
It is this belligerent assertion of the right to highly
privileged status that is comfortably accommodated
by the Hancock Committee, where it claims that 'it
is a mistaken view of the pluralistic society to assume
that every 'subject' is equally dominated by the might
of the State and its arms of enforcement. Some may
wish that things were different: but vain hopes are
no basis for effective policy.'
On the part of the unions, the assertion of power,
to which that comment is addressed, is nothing less
than the naked declaration that might is right. It
is hostile, challenging, belligerent and totally amoral.
On the part of the Hancock Committee, it is dangerous,
pliant pragmatism at its worst and strikes at the heart
of civilised society in which, Hayek says, 'equality
before the law - the treatment of all by government
according to the same rules - (is) .... an essential
condition of individual freedom.'
The current President of the ACTU attempts to justify
delinquent union behaviour on the basis of this being
a matter of accepting the least worst of the alternatives.
His audience is invited to consider how lucky we all
are that things are not a good deal worse and that
but for accords and deals of institutionalised regimentation
so beloved of socialist autocrats, there would be costly
The smoothly glossed-over and invalid assumptions
inherent in this specious logic are not readily apparent
to many gullible listeners who fail to perceive that
this is the big lie and that they are being sold a
The technique is not new. Goebbels lectured his countrymen
on the Jewish 'problem' until many were convinced there
We are constantly threatened expressly or implicitly
with confrontation as the inevitable alternative to
consensus, and our media and many uncritical or anxious
recipients of that deceptively simplistic message,
fall for it.
But rarely are these two alternatives analysed to
discover what each means in given context and what
it means for the community to subscribe automatically
to the latter in preference to the former.
We are told that confrontation equates disruption,
loss, damage, alienation and disaffection and that
its only resolution is by negotiation. That which gave
rise to the demand that led to confrontation never
goes away unless satisfied by consensus, it is said.
In this context it is implied that consensus, meaning
the result of free and equal negotiation, can and does
occur and produces genuine, mutually acceptable results
between partners of equal, or at least not grossly
But we all know that as things stand at present it
isn't like that. Consensus, as the frequently stated
objective of those, oh, so reasonable, union leaders,
is the product of negotiation but it means that the
agreed result will be reached by the use or threat,
or so often merely the perceived use or threat,
In any other context the process leading to that kind
of consensus is spelled B-L-A-C-K--M-A-I-L.
But we are continually offered the unions' preferred
alternative of 'sitting down and talking', and the
seeming reasonableness of that proposition in preference
to all the negative features of the apparent alternatives
has a superficial, and to some persuasive, appeal.
Some feel compelled simply because there is nowhere
else to go, others feel the same because they believe
what they want to believe.
The big lie in all this is that this seemingly so
reasonable public face of trade unionism is a very
skilfully packaged image mainly for the benefit of
assiduously cultivated and overwhelmingly sympathetic
representatives of the media who receive and also skilfully
edit, interpret and construct news items for publication.
Like politicians, union leaders and journalists are
mutually interdependent and feed off each other just
as the Industrial Relations Club lives off its own
internally self-renewing and externally self-perpetuating
magic pudding. So hands that feed are not bitten and
the profiles as presented are therefore acceptable
to their owners.
Knowing some of those profiles and having faced them
and a succession of their predecessors over the negotiating
table for a little longer than most of the journalists,
I can vouch for the fact that the image is very different
when their ever-so reasonable pursuit of consensus
really gets under way.
Ranging in technique from the crudest and bluntest
of threats to the suavest and subtlest of innuendo,
these public proponents of 'meaningful' negotiation
toward the goal of consensus go about pursuing their
The very mode of purporting to pursue consensus could
not be more confrontationist and the reason is that
the contestants' economic strengths are, or have been,
almost always unevenly matched.
The unions have two near-certainties. Hitherto for
them there has been almost no downside risk. The award
is an irreducible, legally enforceable floor which
can be imposed on employers with all the resources
of the State.
So the arbitration system with power to impose its
will only on employers is available if all else fails.
Then there has been the near certainty of unfettered
The threat, expressed or implied, of direct action
makes nonsense of a negotiated consensus and eliminates
the distinction between it and confrontation.
The targeted employer may be a highly-geared business
operating in a highly competitive market with huge
interest charges and a critical need for uninterrupted
The hidden agenda of the consensus-oriented mode of
settlement in preference to the inevitable features
of an overtly confrontationist alternative with its
strikes, pickets, intimidation, violence, litigation,
cost and destruction of property and working relationships
is simply that those are factors inherent in both.
Thus in the present environment the path to consensus
is not one trodden by free and equal negotiators as
might be the case in any other commercial context.
It is one in which the capacity for one side to wreak
havoc on the other doesn't need to be articulated because
everyone knows it exists and therefore, though it is
effective, it is not consensus and it is not good enough.
Let me tell you a little story and ask three questions.
One day recently a sleazy overdressed young gent in
gold-rimmed sunglasses called on a little suburban
jeweller, for the purpose of selling insurance. During
the conversation he expressed concern for a neighbouring
shopkeeper whose premises had recently been smashed
and robbed and who had been bashed in the process.
'What a shame he didn't accept our offer of insurance'
said the gold-rimmed gent. 'I'm sure you wouldn't
want to be without it.'
'But I am already insured' said the little jeweller.
'I'm fully guaranteed against loss of profits as well.
You aren't offering me anything different.'
'Ah, but there is a difference' smiled the sleazy
young man. 'We guarantee it will happen if you
don't insure with us.'
Is the Mafia protection racket any different from
the activities of trade unions?
If our businesses were threatened by protection racketeers,
how should we react?
Is there any justification for treating unions any
differently from how we would expect the Mafia to be
If this analogy seems more relevant to the well known
criminal activities of the BLF and the Ship Painters'
& Dockers' Union, as the dark exceptions to a general
rule that is quite the opposite, let me give you some
details from two disputes that are not exceptional
but are typical and commonplace.
All this information is from sworn affidavits filed
in the Supreme Court in connection with proceedings
for injunctive relief.
The first involved two related manufacturing companies,
Biro-Bic and Reva which have adjacent premises served
by a common main entrance road which runs between them.
The employees of both companies are members of the
Rubber Workers' Union.
After a visit to the Reva factory by an official of
the union, the employees went on strike and set up
a picket which blocked access to the other company,
Biro-Bic, whose employees were not on strike and who
Biro-Bic provides its employees with a car park adjacent
to its factory, access to which is via the common main
entrance road. The Rubber Workers' Union thus prevented
its own members from parking their cars at their own
workplace. At the date of the Managing Director's affidavit
the blockading picket had been in operation for two
The affidavit attests to the fact that the company
was prevented from delivering its products and thereby
from honouring its contracts with large retailers.
The company was also prevented from receiving raw
material for use in its manufacture and the affidavit
further attests that the company would be forced to
curtail production and progressively stand down its
employees. The company lost sales, suffered a deterioration
of its market position in relation to its competitors,
and had its reputation as a reliable supplier damaged.
At the date of the Managing Director's affidavit,
two weeks after Biro-Bic was picketed, the Reva dispute
had twice been before the Arbitration Commission which
'recommended' a return to work but no return to work
had taken place and the picket remained.
An owner-driver cartage contractor with a contract
to deliver all Biro-Bic products called at the factory
as usual only to be confronted with the picket line.
He was prevented from entering and left.
He telephoned every weekday morning for two weeks
to find out whether he could enter to load his truck
and was told there was still a picket line. After two
weeks he responded to a telephoned request to go to
the factory. There was no picket line in evidence.
He drove his truck through the entrance to the warehouse
where it was loaded.
On driving the loaded truck back to the gate in order
to exit, the contractor was confronted with a picket
line which effectively prevented him from driving the
truck out of the premises. He returned the truck to
the warehouse and left in another vehicle.
At the date of swearing his affidavit, some days later,
his truck remained unavailable to him in the company's
warehouse. This tactic of penalising an uninvolved
third party was not based on any dispute with him and
gave no thought for the consequences to him which were
that he not only could do no work for Biro-Bic, but
he couldn't work at all for anyone because his truck
had been impounded.
The union had no dispute with Biro-Bic, and its employees,
although denied their parking by their own union's
picket, continued to work.
In a dispute like that neither Biro-Bic nor its employees
nor the unfortunate cartage contractor have any standing
before an industrial tribunal and even the employer
in dispute, Reva, got no relief from the Arbitration
You will have read that the Unsworth Labor Government
of NSW has recently passed through the Legislative
Assembly legislation prohibiting such an employer from
exercising his statutory or common law right to seek
damages against unions without first submitting himself
to the vagaries of obtaining permission from the Full
Bench of the NSW Industrial Commission.
All industrial tribunals, Commonwealth or State, are
well stocked - in some cases stacked - with former
trade union officials and members or former
members and supporters of the ALP. Approximately
half the members of the Commonwealth Commission fall
into this category.
In the second of my examples the tobacco manufacturer
Philip Morris was the target for thuggery by two unions,
the AMWU and the ETU, assisted by an assortment of
This is from an affidavit filed in the Supreme Court
and sworn by the Chief Security Officer of the company
and concerns a picket line outside the company's factory
which at various times included the former State Secretary
of the AMWU, Mr Halfpenny, and Victorian branch Organiser,
one Max Lorkin, as well as a number of other people,
many of whom were not employees of the company.
The Chief Security Officer attested to the fact that
the picket threatened to stop taxis entering to pick
up employees coming off the afternoon shift. He was
told not to open the gate to let them in and that 'we
have got 10 men to enforce it.' It became necessary
for the company to strengthen its security and the
security firm Wormald was engaged to provide a supplementary
After a visit to the picket line by Mr Halfpenny the
Chief Security Officer says he was informed that one
of the pickets had sought to have Wormald withdraw
its services from the plant and four days later he
was informed by Wormald that because of pressure placed
on that company by the Miscellaneous Workers Union
the security guards would be withdrawn.
Thus the company was left to protect its property
with its own insufficient resources. The following
week the car of the woman night shift supervisor was
damaged by the pickets and vehicles entering the plant,
many driven by female employees, were loudly challenged
with foul language as they entered. For part of the
time pickets blocked the entrance with their own vehicle.
The following day employees arriving for work were
harassed by pickets and another female employee's car
was damaged. The same day the company's gates were
chained and padlocked by the pickets. At 11.45pm two
nights later, shots were fired from the position of
the picket line towards the company's gatehouse at
one of the plant entrances, forcing the company security
officers to take cover.
Four days after this incident the company's Safety
Officer spoke to two of the pickets, one of whom was
an employee who said that as soon as he was back inside
the plant, he was going to wreck it and then go for
another job. He also said that the Industrial Relations
Manager and the Chief Engineer 'were going to be out
of the plant' and that 'he...would make sure of that'.
The same night the pickets threw a barrage of rocks
towards the gatehouse and damage was done to the insulator
of a 22,000 volt power line requiring the sub-station
in the plant to be isolated by the SEC.
The day following these incidents, one of the pickets
smashed the gatehouse window with a flashing amber
road warning light - believed to have been stolen -
and hit a company security officer. The deponent of
the affidavit swore that he was informed and that he
believed the person who threw the light was the State
Secretary of the ETU, one Charles Faure.
As days became weeks, this sort of intimidation, including
assault and battery, trespass, wilful damage to public
and private property, menacing and harassing male and
female employees continued and included a blockade
of the plant entrances by vehicles which had to be
removed by police with the aid of two trucks. One picket
was arrested when he stole the tow truck ignition keys
and threw them over an adjacent fence.
Thereafter pickets sat in the path of trucks delivering
raw materials to the plant, shouted abuse at the drivers
and had to be removed by police.
On one of the nights burning timber from a brazier
being used by the pickets was thrown on to the roof
of the gatehouse; a sign bearing the company's name
was torn from the front of the gatehouse and thrown
on to the fire in the braziers and the power supply
line to the gatehouse was cut. During the ensuing darkness
in the gatehouse a brick was thrown through the plant
engineer's office window.
This activity had been going on for three weeks continuously
when the plant's water supply was cut off and two valves
in the street mains were found to have been sheared
The affidavit of a licensed process server was also
filed in the Supreme Court and he attested that he
and another licensed process server went to one of
the plant entrances for the purposes of serving on
the pickets orders made by a Judge of the Supreme Court.
The colleague of the deponent first attempted to serve
the orders and was 'abused.... in a foul mouthed manner'
and an attempt was made to kick him. The deponent then
attempted to serve the orders and was told if he didn't
get out of there he wouldn't have a car or legs to
He was subsequently knocked to the ground, kicked
and punched and later required medical treatment and
was left, at the time of swearing his affidavit, with
severe back pain, bruises to his arms and legs, a sore
neck and persistent leg pain.
Intimidation of that kind in support of demands for
the payment of money is a criminal act and extortion,
trespass, assault and battery, wilful damage to property,
and so on, that follow initial lack of success are
serious crimes. Why should we accept that they somehow
become not criminal acts when perpetrated in the course
of industrial disputes?
In this country many are becoming - or have become
- so accustomed to and/or feel so helpless about industrial
violence in many forms, physical and otherwise, in
support of union demands, whether explicitly threatened
or no less effectively implied, that they have drifted
into a degree of acquiescence, not only in the mythical
right to strike, but in the so-called right to picket
and in so doing to obstruct; in the so-called right
to sit-in and as a striker to not have your job done
while you are on strike and to be paid whilst striking.
These are not special selections from the public record
about our most notorious unions' conduct. I could have
been deliberately selective from the evidence in the
BLF de-registration case, an appalling saga of unremitting
violence and corruption, and one of the most extreme
examples from the spectrum of industrial confrontation.
Even at the other end of the spectrum there can be
cost and damage to business from direct union action
in support of demands that are not negotiable. In the
case of my own industry, there was merely a secondary
boycott placed on containers of wool on the Brisbane
wharves by the Clerks' Union because, at one of our
wool stores where they are packed, we refused to give
effect to a feather-bedding deal of long standing on
the waterfront that would have required us to employ
clerks we did not need or intend to use.
The secondary boycott caused containers of wool to
accumulate on the wharves and not be loaded on to ships
for export. As a result, woolgrowers were delayed in
being paid the proceeds from the sale of that wool,
in many cases their whole year's income, wool buyers
overseas could not get delivery of tens of millions
of dollars worth of purchases and it took some weeks
(during which the Arbitration Commission was worse
than useless and blatantly sympathetic to the Clerks'
Union) and $60,000 in legal costs, before the Union
desisted in the face of imminent proceedings for injunction
in the Federal Court.
We were subjected to unreasonable criticism by the
Arbitration Commission for refusing to negotiate on
a demand that we employ people to do nothing. There
are many disputes where consensus is just not an option
yet the victim is accused of confrontationism for doing
no more than seeking the protection of the law.
The community has for too long been duped into acquiescence
of wholly unacceptable conduct, very largely because
of the institutionalism of our industrial relations.
Unions are 'registered' with industrial relations
tribunals and thereby acquire a special status which
has tended to legitimate or somehow launder their dirty
tricks and bestow respectability on their leaders,
who have been described by Paul Johnson, a former editor
of 'The New Statesman', as 'the robber barons of the
The President of the Australian Civil Liberties Union,
himself a unionist of long standing, has written that
our 'trade union leaders often appear to be running
a Mafia type protection racket called compulsory unionism'
and that 'the abuse of power by trade union officials
should be curbed, they should be subject to the law'.
It is clear there is now a growing public perception
that things are not right. What is troubling is that
but for the state of our economy, there may not have
been such a spontaneous revolt against these robber
barons. Even worse than the measurable and obvious
effect on our living standards and our unemployment
level is the insidious and largely imperceptible cancer
that has eaten away at the liberties and the freedom
of the individual; the intrinsic corruption in the
way unions manipulate institutions like the arbitration
system and even governments; the fact that generations
of young people are becoming inured to the amoral values
and the decadence of pragmatism; and that in the final
result our civilisation will perish for the same reasons
as have all the great civilisations of the past; because
we have failed to learn the lessons of history.
In 1979 I wrote: 'The mindless despotism of many union
leaders....imperils the democratic freedom not only
of their own members, and those they would compel to
become members as a condition of employment, but that
of the employers with whom they are associated and
indeed the entire community. We in this country have
allowed to occur a condition, not so much of anarchy,
which is the absence of all restraint and authority,
but a despotism which is that of tyrannical oppression'.
When, as free men in a free country, we seek relief
from such oppression we are labelled confrontationists
and exhorted to seek consensus in preference to confrontation.
I have tried to suggest that so often they are indistinguishable.
'Social Justice, Socialism & Democracy' published
in 1979. The Centre for Independent Studies.
'The Dilemma of Democracy' by Lord Hailsham, published
by Wm Collins & Sons.
'The Trade Union Reform Act of 1987' by Peter Costello,
published in I.P.A. Review, Volume 40, No. 3.
'FACTS' Volume 35, No. 3, published by Institute of