Trade Union Reform

Consensus or Confrontation---Is there a Difference?

Barrie Purvis

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 disaster.

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 notwithstanding.

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 universal.

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 petit bourgeoisie.

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.

    It is in truth lawless government.

'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 majority vote.

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 democracies.

    '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.

He says:

    '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 cause.

    '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 obvious.

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 be 'genuine'.

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 mayhem.

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 bad bargain.

The technique is not new. Goebbels lectured his countrymen on the Jewish 'problem' until many were convinced there was one.

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 unequal, strength.

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, of force.

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 demands.

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 disruptive capacity.

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 cash flow.

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 treated?

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 continued working.

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 weeks.

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 Commission.

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 rent-a-mob individuals.

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 service.

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 off.

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 drive on.

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 twentieth century'.

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.


References:

    '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 Public Affairs



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