Wednesday, March 22, 2017 2:00pm
This article by Tony Rossi was published on the Law Society of South Australia website and in Points Of Law in the Adelaide Advertiser on the 20th March, 2017
New head of the ACTU Sally McManus caused a stir when she said that she has no problem with the unions breaking “unjust” laws.
After criticism from the Prime Minister and disagreement on the part of the Leader of the Opposition, she sought to explain her comments by arguing that the union movement only won fundamental workplace rights by defying the law and taking industrial action.
Context is always important and particularly so in this case.
Industrial laws have changed and protected industrial action can now take place provided reasonable steps are followed.
The initial comment by Ms McManus was on The 7.30 Report in response to questions as to whether she supported the recent illegal industrial action by the CFMEU.
The CFMEU and its affiliates have been fined more than $7 million for unlawful industrial action. Worryingly, a consistent theme of the behaviour of the CFMEU has been using obscene and threatening language, making threats of assaults and in some cases engaging in physical altercation.
Not known for strong language the courts have variously described the actions of the CFMEU as “disgraceful behaviour”, “astounding” and of the union having an “egregious record of repeated and wilful contraventions of all manner of industrial laws”. The Victorian Supreme Court, in one case found the union’s actions amounted to criminal contempt.
Rather than a proper use of industrial action to protect a workplace right, in the matter of Stephenson Justice White characterised the actions of the CFMEU as simply “a willingness to contravene [the law] as and when it chooses”.
It would be interesting to know how Ms McManus would react if a major builder decided to break the law, perhaps to not pay its workers in accordance with award rates because it thought the award rates were unfair to employers?
The way of life that we enjoy in this country is largely dependent upon the democratic process and the rule of law. Socrates saw the law in terms of compacts and agreements amongst members of a community. To break a law was to break that compact. The end result of everyone acting according to what they individually think is fair is anarchy.
Ms McManus is in a major organisation in this country which has the ability to influence voters. It is wrong to encourage a defiance of the law. If you do not agree with the law then advocate for its change through the democratic process.
In Robert Bolton’s play “A Man for All Seasons” young Roper asserted that he would cut down every law in England to get after the devil. Sir Thomas More then challenged him as to what he would do when the devil turned around and there were no laws to protect him.
The laws we have are to guide our conduct and to protect us. If we were to all break the law when we think the end justifies the means, the rule of law would be in tatters.
Tony Rossi PRESIDENT