Technical Gimmick Undermines the Law

The recent criminal conviction and suspended jail sentence given to Craig Johnston for his role in the violence in 2001 at Skilled Engineering does more than just deliver a verdict on the actions of an individual.  It unearths a deep seated culture within some sections of the labour movement where illegal action is actually viewed as morally good when done to achieve industrial goals.

Johnston led his band of industrial terrorists on a violent rampage through the offices of Skilled Engineering precisely because he wanted to achieve an industrial outcome, namely the stopping of labour-hire arrangements.

It must be asked whether this view of illegality being moral, if done for industrial purposes, receives quiet sanction from Australia's industrial relations institutions.

In this context a comment by a commissioner of an industrial relations commission during commission hearings last year raises concern as to the institutional integrity of the industrial relations system.  In considering an enterprise agreement between a union and an employer, there was a discussion as to whether clauses in the agreement breached areas of commercial law.

The commissioner said the following:  "[If] ... a clause in an enterprise agreement has been approved [by the Commission] and ... If the agreement is made and if someone thereafter, an employer or union or employer organisation, does something contrary to law by reference to that, then ... it is not really a matter which has to be considered [by the Commission] in the context of the agreement".

This statement was followed by a 2004 commission decision that in spite of accepting that certain labour-hire restrictive clauses in an enterprise agreement were in effect an agreement to breach the Trade Practices Act, the commission found that the agreement should be endorsed.

Based on this decision and the prior comment of the commissioner it appears that under the industrial system, people can enter arrangements where they agree to break commercial law and commissions will ratify the agreements.  This happens regularly.  The technical trick is that agreements to break the law do not of themselves break the law until they are acted on.

It's like saying that a stalker has a legal right to stalk a victim but does not break the law until a victim has been bashed.

This technical twist raises questions about the ethical underpinnings of Australia's industrial relations institutions and the legislations under which they act.  It must surely underpin a culture in which some in the labour movement suspect they have wink-and-nudge approval from commissions for law breaking.

For those who are potential victims of consequent law breaking, this sends signals they can have no faith in the institutions that are allegedly independent umpires.  The environment is dangerous.

The issue is not with industrial commissioners, who can apply the law only as it stands.  But if the law is so flawed that it gives legal sanction to agreements to break the law, then the community cannot trust the law.  The industrial relations system is in trouble.

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