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ACCC v. MUA
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DMC/S&T/34/01Australian Competition & Consumer Commission v. The Maritime Union of
Australia & Others
Summary
u u u u u Facts Since the early 1970s, the MUA (or its predecessors) had taken the position that when a ship is in an Australian port for loading or unloading, shore-based labour should be used to clean or prepare cargo holds. The MUA was opposed to crews of foreign vessels cleaning the holds of those vessels while travelling between Australian ports. Ê
Ê 2 In May 1998, a picket line was formed approximately 35 minutes before the "Jian Qiang" was to leave port. The majority of the mooring gang refused to release the vessel and two gang members expressed the view that they would be harassed if they crossed the picket line. Ê 3 In August 1997, a picket line was formed approximately 15 minutes before the "Anangel Eagle" was due to leave the Port of Newcastle. Ê The "Star Sea Bird" and the "Anangel Eagle" were engaged in bulk trades and had loaded or unloaded cargo at the Port of Adelaide and the Port of Newcastle respectively. Both vessels were scheduled to travel to another Australian port. The "Jian Qiang" was engaged to carry barley from Australia to Taiwan and was due to load the grain at the Port of Adelaide after its cargo of fertiliser was discharged. Ê Section 45DB of the Trade Practices Act deals with boycotts affecting trade or commerce. It states that: "A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person who is not an employer of the first person from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia." Ê Section 60 of the Act deals with harassment and coercion. It states that: "A corporation shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer." êêê Judgment In relation to s45DB, the MUA had admitted prior to the hearing that it had contravened the Trade Practices Act by substantially hindering the operators of the "Star Sea Bird" and the "Anangel Eagle" from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia. Two of the MUA’s officers also admitted to being knowingly involved in the contravention. The union agreed to pay a penalty of $150,000 to pay the ACCC’s costs of $60,000. These figures were approved by the Judge. ø The issue of an offence under s60 concerned the actions taken by the MUA in relation to the "Star Sea Bird" and the "Jian Quing". Hill J. held that for such an offence to be made out, the ACCC needed to prove (among other things): • there was conduct that took place either in the course of, or in relation to, trade or commerce between Australia and places outside Australia; • the conduct consisted of a use of physical force or undue harassment or coercion. ø The MUA argued that there was not the necessary relationship between the conduct complained of and international trade. However, Hill J disagreed: "It is without question that stevedoring operations are essential to the importation or exportation by sea of goods in the course of inter-state or overseas trade and commerce … Loading and unloading, the essence of stevedoring operations, are part of the series of acts or arrangements forming international or inter-state trade. Cleaning the holds of a vessel is as much a part of the loading and unloading process as the direct activities themselves are." ø The Judge then considered whether the actions of the MUA amounted to "undue harassment and coercion". He held that the formation of a picket line to prevent access to a vessel and stop its departure, in circumstances where the picket line is capable of engendering fear in the minds of the mooring gang, will constitute coercion when it is aimed at compelling those responsible for the vessel to have the holds cleaned by shore-based labour. ø Hill J concluded that the ACCC had proved its case: 1 Against the MUA for engaging in conduct which constituted coercion on the "Star Sea Bird" and the "Jian Qiang" in connection with the supply or possible supply of goods or services to a consumer; and 2 Against one of the MUA’s officers for being knowingly concerned in the contravention of s60, as he had the knowledge of the essential facts constituting the contravention. ø The Judge deferred making any further order in relation to the s60 contravention until further submissions by the parties could be heard. u u u u u Comment This case has specific implications for ship owners and agents who may face union pressure about the resources used for ship cleaning or any other conduct that hinders international trade. u u u u u |
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