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Australia: 97 dock workers sacked by Hutchison Ports remain locked out

After a week of magnificent union and community solidarity with the 97 dock workers sacked by Hutchison Ports Australia, the battle for their reinstatement has gone to court.

August 20, 2015

Photo: Hutchison Ports - Stop Union Busting

Read the Spanish version Australia: 97 trabajadores despedidos por Hutchison Ports sin poder ingresar al trabajo

The Maritime Union of Australia (MUA) won a temporary injunction on August 13 to stop Hutchison from sacking these workers. The next day, the union directed all Hutchison employees to return to work, but it soon became apparent that the courts had not ruled in favour of the reinstatement of the sacked workers. While these workers may not have been legally sacked, neither have they been reinstated. They currently remain locked out.

On August 6, at half an hour before midnight, Hutchison Ports send text messages and emails to 97 of the company’s 224 member workforce to tell them that they had been sacked. On the hit list were 56 “wharfies” (as dock workers are known in Australia) from the Port Botany terminal in Sydney and 41 from the Fisherman Island terminal in Brisbane.

News of these sackings was greeted with indignation across the labour movement. Within hours, protests were established outside the two Hutchison Ports terminals in Sydney and Brisbane. The next week saw magnificent displays of union and community solidarity taking place, with hundreds of MUA members and other unionists regularly in attendance. These solidarity actions took place in defiance of two return to work orders from the Fair Work Commission that were issued on August 7 and 10.

While these solidarity actions were taking place, the MUA lodged its own case against Hutchison Ports in the Federal Court. The union sought a legal injunction to overturn the sacking of the 97 wharfies and to get them reinstated.

The orders from the initial hearing in the Federal Court of August 13 by Justice Darryl Rangiah ruled that Hutchison “rescind their decision to terminate the employment of their employees” and restrained the company from “terminating the employment of any employees on the ground of redundancy”.

These initial Federal Court orders were heralded as something of a victory by MUA leaders. That same evening, MUA Sydney Branch Secretary Paul McAleer told the hundreds assembled at Port Botany that “what we have won is the first battle in this war”. At least he was being somewhat circumspect. Not so MUA National Secretary Paddy Crumlin. He told the crowd that “the judge has made it clear that he is going to make an order that all Hutchinson workers will be reinstated until our court case is heard”. Union leaders then directed all MUA members at Hutchison Ports to return to work the next day.

However, it soon became apparent that the 97 sacked wharfies had not in fact been reinstated. On the morning of August 14, those returning to work marched through the “guards of honour” that MUA members and supporters gave them as they headed towards the terminals. But by the afternoon, the union had run into trouble. In Sydney, three of the previously sacked maintenance workers were refused access to the Port Botany terminal by Hutchison security.

The initial August 13 Federal Court orders only placed a temporary injunction on the company’s decision to sack over 40 percent of its workforce. There was no order made to reinstate these workers.

This is all clearly spelt out in the judgement handed down by Justice Rangiah on August 14. He ruled that the MUA had established enough “prima facie” evidence to suggest that the sackings carried out by Hutchison had twice breached the Enterprise Agreement with the union, and so contravened the Fair Work Act on two separate occasions. This was enough for Rangiah to rule that the company be required to “rescind their decision to terminate the employment of their employees” and be restrained from “terminating the employment of any employees”. In other words, Hutchison cannot at present sack these workers. Whether they will be sacked or not will depend on the outcome of the full Federal Court hearing to begin on September 1.

The sackings may be temporarily suspended, but this does not mean that the sacked wharfies can go back to work. The August 14 judgement also spells this out. Hutchinson Ports is “required to continue to pay wages to those employees” but is “not obliged to provide the relevant employees with work if [the company] are unwilling or unable to do so”. The judgement further states that, “since the relevant employees have not been required by [Hutchison Ports] to perform any work since 6 August 2015 and they have been paid their wages by [the company] since then, an injunction does not create any significant practical change to the present relationship”. In effect, the 97 sacked wharfies have been suspended on pay for a couple of weeks.

It is bad enough that the 97 workers have not been reinstated. But for the MUA, things are even worse. This judgement makes the MUA liable for the payment of all costs to Hutchison Ports if the legal proceedings against the company are eventually dismissed. Not only is the union liable for the “usual undertaking as to damages” (which could easily run into the millions of dollars). There is also a specific requirement for the MUA to “repay the wages and other expenditure” that Hutchison Ports have incurred in the event that the MUA loses the case. For a union that is already facing a multi-million dollar lawsuit from oil giant Chevron, this is a precarious position to be in.

One thing is certain. If MUA leaders were relying on a legal strategy to achieve victory through the courts, they had better think again. What is required is an industrial strategy that taps into the huge reservoir of union and community support that clearly exists for the 97 sacked workers and the MUA. If that means stopping work at Hutchison Ports and defying more return to work orders from the Fair Work Commission, then so be it.

Full transcript of the Federal Court ruling

Video of Paul McAleer and Paddy Crumlin speaking at the August 13 rally at Port Botany

There is a Facebook page that readers can join to show their support for the sacked wharfies:
Hutchison Ports – Stop union busting (English content only).

The MUA has already received dozens of messages of international solidarity. Please email all messages to:

MUA Queensland Branch - muaqld@mua.org.au
MUA Sydney Branch – muasyd@mua.org.au
MUA National Office - muano@mua.org.au

With a copy to:
solidaridadportuarios@gmail.com
All Spanish-language sent to this address will be translated into English and forwarded on to the MUA.




Related

Hutchison   /    wharfies   /    MUA   /    stevedore   /    Australia   /    Labor movement