By Reihana Mohideen
One of Australia's strongest unions, the Construction, Forestry, Mining and Engineering Union (CFMEU), could be sued for millions of dollars worth of "damages" after the Industrial Relations Commission paved the way for mining company Rio Tinto to proceed with a common law suit for damages over the industrial dispute at the Hunter Valley No. 1 coal mine.
The CFMEU mining division national president, John Maitland, explained to 91×ÔÅÄÂÛ̳ Weekly that: "The certificates that have been issued by the IRC allow the company to go to the Federal Court and seek injunctions to prevent the union from conducting a picket, and to sue for damages that may have been caused by any illegal conduct. This is another provision of the Workplace Relations Act which is designed to intimidate workers and give employers easy access to the Federal Court and to injunctions."
"Rio Tinto has listed the people it is seeking to sue. They include a number of full-time officials and a number of rank and file activists. The company claims that it is losing $1 million a day in revenue. That's been happening sometime since June so we're talking about tens of millions of dollars worth of damages."
The miners have been fighting attempts by Rio Tinto to smash their right to organise under the guise of getting rid of "restrictive" work practices and by attempting to introduce individual contracts.
The miners went on strike for six weeks before returning to work on July 22 to negotiate an enterprise bargain with Rio Tinto. The company responded by attempting to employ management as scab labour and by threatening to sack around 200 workers. The miners resumed their strike on September 8.
The union is trying to pressure Rio Tinto into a negotiated settlement through the IRC and is arguing for "consent arbitration". The company has refused to negotiate and has demanded that the judge in charge of the case stand down from the hearings.
Maitland explained: "Compulsory arbitration, where the company isn't a willing party to it, means it will continue on with its intimidation, harassment and provocation directed towards individual workers at the mine site. So that's why we're suggesting that it should be consent arbitration.
"Consent arbitration also means that the strike can continue. The protection that our workers are afforded by the bargaining period will continue. Compulsory arbitration means that the bargaining period is terminated, that the protected action is terminated. Our people will have to resume work and they will be faced with considerable intimidation and provocation and if they were to react and take industrial action they wouldn't be protected."
The NSW Carr Labor government has intervened in the IRC calling for compulsory arbitration to resolve the dispute. The union could be coming under heavy pressure from the ALP to call off the strike in order to negotiate, a tactic that was tried and has clearly failed.
Despite the enormous pressures from all sides, the indications are that the miners at Hunter Valley No. 1 are determined to continue the fight and maintain a strong union. The July 22 vote to return to work was by no means unanimous with several miners opposing the decision.
"At this stage we continue the picket and the miners are out", Maitland said. "We are not going to be intimidated by any action that the company takes. If it heads off to the [civil] court then you will have a mere human judge, a mere mortal, trying to force the union to stop this campaign and trying to force men and women who are fighting desperately for fundamental rights away from that. Divine intervention will not force those workers to give up the fight for their cause.
"So we're not inviting contempt of court, but it's quite clear that we won't be accepting any provisions which require us to pull down our picket or cease our industrial action."
If Rio Tinto seeks damages against the union for lost profits, the union has warned it will escalate the dispute. "That's been on our minds for a considerable period of time", Maitland explained. "The problem that we have in escalating the dispute beyond Rio Tinto is that it injures other workers and it disadvantages other employers who have been willing to work with us."
Maitland told 91×ÔÅÄÂÛ̳ that the union would look first at expanding the dispute to other Rio Tinto operations before considering extending it to the whole coalmining industry.
The stakes are high. Rio Tinto is well known for its aggressive union-busting campaigns from the Pilbara to Weipa. Hunter Valley No. 1 is the battleground chosen by one of the world's most powerful mining companies to launch its attack on union organisation in the coal industry.
The company has the active support of the Howard government which is keen to test out the union-busting provisions of its Workplace Relations Act. It is not surprising that the federal industrial relations minister, Peter Reith, is demanding that the union abide by "the law of the land", since the law has been deliberately designed to weaken unions' ability to legally defend their members' wages and conditions.
Maitland explained the union's strategy to combat the government's offensive. "Our strategy has been to isolate those companies which have been prepared to make themselves the battleground for the government's Workplace Relations Act and to make it as difficult as possible for those companies to operate anywhere in Australia.
"We have been trying to show that there is a very great difference between efficiency and profitability between those companies prepared to work with the trade union movement and those that won't. That's the only concern we have at this time. It really is a case of waiting for the most appropriate time. If we believe it's necessary to close the whole industry down to protect our members and their rights then we will do it. There's no question about it."
One of the key weapons in Reith's "law of the land" is the act's secondary boycott provisions which make it illegal for those employed at any particular workplace to take industrial action in solidarity with workers at any other.
Ultimately the ACTU and some of its powerful union affiliates will have to be prepared to defy the secondary boycott legislation — to defy the "law of the land" — to defend union organisation. Despite promises by the ACTU to fight the government's offensive against organised labour there has been no indication so far of any practical steps taken to carry out these promises.
However, Maitland is optimistic: "No union is going to offer itself up as a target for unnecessary action by the civil courts, so unions are being very careful in the sort of actions they take. But there is also no doubt in my mind that if it is necessary to ignore the secondary boycott provisions, injunctions and writs, the union movement will do it. In the case of Hunter Valley No.1, if that company seeks injunctions and damages against us then we will do it."