Hunter miners: court cripples right to strike
By James Vassilopoulos
Rio Tinto has succeeded in its bid to undermine the picket line at the Hunter Valley No. 1 coal mine. On October 14, the NSW Supreme Court ruled that unionists could not take any action which "physically impedes" people, trains and vehicles from entering the mine. This sets a dangerous precedent by imposing limits on the right to picket that could render strikes ineffective.
This is the latest twist in the fight between the Anglo-Australian multinational, Rio Tinto, and unionists at the Hunter Valley No. 1 mine. In this latest round, workers have been on strike since September 8 over their enterprise bargaining agreement.
Rio Tinto wants total control over the operation of the mine and to take away or reduce working conditions including long service leave, sick leave and annual leave. It wants a less permanent work force.
The NSW Supreme Court judgment, a copy of which has been obtained by Green Left Weekly, allows picketers to lawfully picket the mine as long as they do not "physically impede" or obstruct goods which enter or leave the Hunter mine. Previously, union officials had convinced train drivers not to cross the picket. This is now considered a "tort of nuisance" and allows unionists to be sued under common law.
A full report on the court case given to the striking miners was endorsed unanimously at a mass meeting on October 14.
This court decision, coupled with the draconian measures contained in the Workplace Relations Bill, well and truly cripples the right to strike. Under the legislation, solidarity strikes are outlawed and unionists can be made liable for "any loss or damage suffered". This is why members of the Public Transport Union, who drive the coal trains, cannot strike in support of the Hunter miners.
In addition, some workers are banned from striking in their own right. It is now illegal for workers to stop the movement of goods between Australia and overseas countries. This provision is particularly targeted at maritime workers who, in their recent dispute in Cairns, did not impede goods entering the wharves.
A "legal" strike must now follow a set procedure: the union must give the employer three working days notice; the commission may order a secret ballot in a bid to stop workers from taking industrial action; and the commission can end the legal strike for any one of six reasons including "significant damage to the economy". If the unions do not follow proper procedure they may be fined thousands of dollars.
These measures are an attack on the democratic right of workers to organise. They are designed to allow big business to rule and to make profits without hindrance.
In the case of Hunter Valley No. 1, common law injunctions have been taken out against the Construction, Forestry, Mining and Energy Union (CFMEU), the Australian Manufacturing Workers Union and nine union officials and delegates. If they disobey the orders not to stop trains leaving the mine, they face large fines and possibly jail.
Surprisingly the CFMEU welcomed the decision. CFMEU national president, John Maitland stated in a press release on October 14: "Today's decision recognises our right to picket. This is a tremendous victory for working people."
Tony Maher, CFMEU energy and mining division senior vice-
president, said: "We don't believe our pickets would be rendered ineffective by these injunctions. We will provide an effective peaceful protest outside their operations and they won't be able to export coal."
Dick Nichols, industrial spokesperson for the Democratic Socialist Party disagrees. "This judgment is a setback for working people. It turns a picket into a feeble action, which is not meant to stop production. It sets a dangerous precedent for future struggles."
According to Nichols, "On the one hand the judgment means that unions cannot stop coal from leaving the mine and, on the other, the train drivers can only refuse to cross the picket line if there is a 'reasonable concern' for their or the public's safety.
"The only way unionists can stop coal from being exported is if they stand close enough to the train for the driver to claim there is a safety issue, yet not close enough to actually stop the train.
"This will put enormous pressure on the train drivers. It also opens the door for either the train drivers to be sued for not following Australian Industrial Relations Commission orders, or for the CFMEU to be sued for impeding the trains."
Mick Kelly, CFMEU northern districts vice-president told Green Left Weekly, "If you put yourself in the position of a train driver, you have got hundreds of people on either side of the track ... train drivers have viewed that to be unsafe and they have not proceeded."
The CFMEU was granted some breathing space by the AIRC's October 7 decision not to order train drivers to cross the picket line. The union, however, is confident it can stop coal and challenged the mine management to "order a train". This is when the real test will come.
Allan Davies, the manager of the Hunter Valley No. 1 mine, told ABC Radio on October 14 that a train "is planned but not considered urgent". Davies claimed the NSW Supreme Court decision as a victory, and that management never wanted to completely outlaw pickets, only those blocking production. One reason for not ordering the train right away is the fact that, in the past, this has increased miners' morale.
Another miner has signed an individual contract — taking the total to eight — and according to the October 15 Sydney Morning Herald the company has had "fruitful talks with several dozen other strikers". Rio Tinto's tactics are to prolong the dispute and to isolate and demoralise the miners. It aims to get about 50 picketers to break ranks and produce coal.
Whatever happens in the Hunter case, the NSW Supreme Court has set a dangerous precedent for workers. It is likely other bosses will follow Rio Tinto's actions with threats or injunctions to against workers' pickets. Most workers may not be able to escape on a technicality about "safety".
Nichols told Green Left Weekly that "unions need an all-in strategy to fight the secondary boycott laws and against penalties for taking strike action or else the bosses will pick them off one by one.
"In the late 1960s, the unions had such a plan when they made penal clauses in the industrial laws inoperative. That plan included an ACTU policy of non-payment of fines, new bank accounts, and strikes. When tramways union official Clarrie O'Shea was jailed in 1969 there was a general strike. The unions defied the law and the courts."
The CFMEU has received international support in its struggle against Rio Tinto. President of the International Longshore and Warehouse Union, Joe Cortez, stated that, "We will act decisively on their [Australian unionists] behalf should arrests or prosecutions by instituted. Further, Local 13 (Los Angeles) branch of the ILWU will provide immediate support in blocking the import of any Australian cargo that has been loaded or produced by strike-breaking labor."
Donations and messages of support for the Hunter Valley miners can be sent to the CFMEU, 3rd floor, 361 Kent St, Sydney 2000. Fax (02) 92621928.