||Issue No. 174||11 April 2003|
Might Does Not Mean Right
Interview: Picking Up The Peaces
Unions: The Royal Con
National Focus: Around the Grounds
Economics: The Secret War on Trade
International: United Front
History: Confessions of a Badge Collector
Politics: Stalin’s Legacy
Review: Such Was Not Ned’s Life
Poetry: Osama's Top Recruiter
Satire: Woolworths CEO Denied Bonus After Company Posts Profit
The Locker Room
More Angry Trots
WA Court Undermines Cole
Perth Magistrate Paul Heaney has dismissed a range of charges against assistant state secretary, Joe McDonald, and organiser, Graham Pallott, confiming their rights to enter building sites.
CFMEU WA branch secretary, Kevin Reynolds, called the not guilty verdicts "a smack in the face for (Royal Commissioner Terence) Cole who brought down a whole range of findings against us on the basis of Right of Entry.
"It has been our contention for the last 10 years that we have been unlawfully prevented going about our business. It's something Cole tried to reinforce but this case has vindicated our position."
Workplace Relations Minister, Tony Abbott, has proposed a range of restrictions, including massive fines on workers and a Building Industry Commission, citing more than 300 "unlawful" findings in WA as justification.
A vast number of those findings stem from Right of Entry restrictions imposed in 1992 by controversial state Industrial Relations Minister Graham Keirath, whose IR regime has been described in the Murdoch press as the "most draconian" in Australia.
Magistrate Heaney said the McDonald-Pallot case, stemming from a 2001 picketline incident, was "very important" because it recognised the CFMEU's right to access construction sites.
He was scathing of police who brought charges of trespass, resisting arrest, escaping lawful custody and hindering an officer. Heaney ruled unionists had been wrongly arrested.
He said police had no training in industrial law and did not understand the Right of Entry concept. Further, that they had taken their instructions from representatives of the company, Pindan Construction, and hadn't bothered to check McDonald's claim that union representatives were entitled to be present.
The case was not without humour, especially in relation to the escaping charge laid against McDonald.
Officers said they had arrested and handcuffed McDonald before joining in the arrest of two other workers. When they returned for McDonald they couldn't locate him, despite a search of the site.
One of the officers said that the next time he had seen McDonald was at the East Perth lock-up where he had arrived, apparently, to return his "undamaged handcuffs".
"There simply is not one scintilla of evidence that he had escaped custody," the Magistrate said. "He was located at the lockup, someone must have taken him there.
"The charge against Mr McDonald of escaping out of legal custody must fail, and I come to this conclusion without even having to deal with the fact that he was not even in lawful custody because his arrest was unlawful."
A third union member, James Murphy, was found not guilty on charges of assault and resisting arrest but was fined $500 for assaulting a policeman for an action, during the melee, likened to a "rugby tackle".
Federal Court Sees it Differently
In another clash between judicial process and the extra-judicial inquiry, Cole made around 20 findings of "unlawful" action against no fewer than 15 CFMEU officers, arising from a dispute between Hanssen Pty Ltd and the union on Perth's Bluewater Apartments site.
The same issue, over the sacking of union members, had been resolved on October 25, 2000. The orders, made by the Federal Court of Australia that day, are reprinted below in full ...
"The Court Orders that:
1) The Respondent (Hanssen Pty Ltd) do forthwith reinstate:
1.1 Ross William Ludemann
1.2 John Thomas McGurk
1.3 John McCann
1.4 Philip Sean Mulne
1.5 Rory Michael O'Driscoll
1.6 Andrew Swarbrick
1.7 Stuart MacDonald
1.8 Nathan Dean Miller
The said reinstatement to be on the same terms of engagement that existed immediately prior to their termination on 26 September 2000.
2) The Respondent do pay to each of the Second Applicants and to Nathan Dean Miller, compensation for income lost between the date of dismissal namely 26 September 2000 and the date of reinstatement or in the case of Youran Nathan Lingham, the date of other employment. Such compensation to be calculated on the basis of the terms that the said Applicants were engaged on immediately prior to their termination on 26 Semptember 2000.
3 The Respondent do pay the Applicants' (the CFMEU's) costs of the action agreed at $20,000."
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