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DMC/S&T/34/01Australian Competition & Consumer Commission v. The Maritime Union of Australia & Others
Federal Court of Australia: Hill J.: [2001] FCA 1549: November 2001

Case Note contributed by Sharon Yeo, lawyer at Ebsworth & Ebsworth Lawyers, Melbourne.; Ebsworth and Ebsworth Lawyers are the International Contributors for Australia.


The Australian Competition & Consumer Commission (ACCC) were successful in legal proceedings brought in the Federal Court of Australia against the Maritime Union of Australia (MUA) and three of its officers for breaching section 45DB and s60 of the Trade Practices Act 1974 (Cth). The court action concerned picket lines formed by various MUA members because shore-based labour was not being used to clean the holds of the "Star Sea Bird", the "Jian Qiang" and the "Anangel Eagle".

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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.

The cost of engaging shore-based labour to clean holds is higher than using the ships crew to do the same job. Therefore, some ship owners and operators preferred to have their ships cleaned by the crew while the vessel travelled between ports or, if a vessel was required to discharge and load cargo at the same port, by sailing from the port and cleaning the holds while the ship was at anchor.
In October 1996, the MUA issued a notice to ship owners and agents that the practice of using a ships crew to clean and wash down the hatches of international vessels would be monitored and industrial action may be taken in response. As a result of this policy, the MUA and a number of its members and officers were involved in the following events: 
1 In March 1999, approximately 45 minutes before the "Star Sea Bird" was due to leave port, a picket line was formed at the main gate to the access road leading to the berth where the vessel was moored. The mooring gang refused to release the vessel. One gang member expressed concern that there could be problems if the gang members crossed the picket line. 

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. 

In August 1997, a picket line was formed approximately 15 minutes before the "Anangel Eagle" was due to leave the Port of Newcastle.

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.

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."

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."

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 MUAs officers also admitted to being knowingly involved in the contravention. The union agreed to pay a penalty of $150,000 to pay the ACCCs costs of $60,000. These figures were approved by the Judge. 

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. 

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."

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. 

Hill J concluded that the ACCC had proved its case:
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 MUAs officers for being knowingly concerned in the contravention of s60, as he had the knowledge of the essential facts constituting the contravention. 

The Judge deferred making any further order in relation to the s60 contravention until further submissions by the parties could be heard.

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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.

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