Are secret Union deals simply extortion?

The TURC sittings this week have hardly raised a murmur in our 'distracted' press. I write 'distracted' but many other adjectives, unprofessional, feckless, irresponsible, incompetent, may be more suitable.

The statements of Thiess employees could be described as nothing less than bombshells casting asunder all of Bill Shorten's past testimony and the media's dismissal of smoking guns. What is more smoking than direct affirmation that the special 'side deals' were negotiated by Bill Shorten as secretary of the Victorian branch of the AWU. Deals whereby Thiess would make secret payments of large sums to the Union in exchange for industrial peace. 

It is all there. Secret payments for sham invoices for services which were never provided. Sham invoices paid in full paid by Thiess and money received by the AWU. Why was Thiess paying the AWU ? They were buying industrial peace. No doubt had the company not paid they believed they would have suffered industrial disruption. 

Lets check the definition of extortion and protection racquet; - 

Extortion is a criminal offense of obtaining money, property, or services from a person, entity, or institution, through coercion. It is sometimes euphemistically referred to as a "protection racket" since the racketeers often phrase their demands as payment for "protection" from (real or hypothetical) threats from unspecified other parties.   https://en.wikipedia.org/wiki/Extortion

Mmm. Do you see any similarity with the apparent modus operandum of the AWU in their deal with Thiess? It seems the Union acts like common racketeers obtaining money in exchange for providing 'protection' from industrial action, by, no doubt, its own members. This smells awfully like extortion!

Make no mistake this payment to the Union is in effect a benefit to the Union bosses, who use these fraudulent funds either for advancing their Union as it competes for members against other Unions, or for, let's call it 'private purposes'. Such as those derived, for example by the likes of Williamson, Thompson, Jackson and let me include Shorten.

A Union should never accept employer payments

There is a legitimate role for Unions in working on behalf of their members to improve working conditions, but when a Union accepts any payment directly from an employer in any form it is not just a 'conflict of interest', it is a crime. It is akin to 'demanding money with menaces', it is eliciting a bribe, it is extortion.

Where is the media?

The testimony by employers on the AWU fraud has been reported in the print media.

• SMH Oct 12, "Royal commission testimony: Invoices to Bill Shorten's AWU 'bogus' in EastLink union deal
• SMH Oct 13,Bill Shorten's AWU 'sold out' workers for $300,000
• SMH Oct 14, AWU 'sold out' over 36-hour week, union royal commission told
• The Australian Oct 15, "ALP leader Bill Shorten failing to escape AWU ‘fraud’ vortex

However most surprisingly; for much of this week, the commentariat seems to have been on holidays! Except for Skynews' Paul Murray Live, discussion or even mention of the TURC, or the AWU, has been strangely absent from news bulletins and political programs. I may have missed some, but I cannot recall any reference to what should be a politically explosive issue on any of the ABC's news bulletins or indeed AM, PM or 730 programs. Astoundingly selective reporting!

Even when mentioned, there is a tendency for the media to regard this type of practice as an occasional slip up of an individual Union or individual Unionist. However evidence at the TURC seems to indicate otherwise. We have seen these types of criminal 'deals' at the CFMEU, the HSU, and now at the AWU. It is very likely a widespread prctice.

It seems that most of our media media has avoided calling the Union's role in accepting direct payments from employers a crime. This is despite the clear evidence to the contrary. Is the media shying away from reporting on a problem whose magnitude and political impact is potentially catastrophic to one of our leading political parties? You can draw your own conclusion. For me, I believe we have a significant problem. Not only do we have rampant extortion in operation within our industrial relations system, but by failing to report on it without fear or favour, our media seem to find it acceptable!

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On fair-minded lay observers..

'Fair minded lay observers' seem to have popped into our milieu of late. What the heck are they?

Can we find one?

Is a parking cop fair minded when he books me while I am standing next to the yellow Maserati which has been parked for just 1 hour in a no-parking zone?  Or is he simply picking on me because of my pink hair and tattoos, or indeed my Maserati?

Ok perhaps an extreme example. Try this.

What would a fair-minded lay observer say about a Human Rights Commission president who postponed a review of 'children in detention' when the numbers were rising rapidly under a Labour Government, till after a change of government when the numbers were falling rapidly?

No? No that one? Ok lets try again.

What would a fair minded lay observer think of a Union lawyer arguing a Royal Commissioner recuse himself because "he is guilty of apprehended bias" after his Union has been exposed as corrupt with many of its members already facing criminal charges?

I guess you can see where I am going with this, but bear with me.

The argument over 'apprehended bias' by Dyson Heydon in his role as TURC commissioner has taken centre stage.

The term was new to me till recently. So I have had to do some quick Googling.  There are of course many references, all rather legalese.  Apprehended Bias is the criterion used to determine whether a judge has sufficient impartiality to rule on a matter.

The NSW judicial commission provides this definition; -

"The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Judicial Commission of New South Wales

And to further clarify; - 

" the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude." ( Source Reasonable apprehension of Bias )

With the TURC, the decision is up to Dyson Heydon (DH) and we will know his decision in due course.

I have already recorded my position vis-a-vis the justice of this attack but would like to add some points specifically addressing the Apprehended Bias attack. (4 reasons why Dyson Heydon should stay)

• The claims of Apprehended Bias are disingenuous
• The claimants have evident bias themselves
• Some of the claimants arguments do not support Apprehended bias

The claims of Apprehended Bias are disingenuous. 

The Unions raising the claim do so not because they believe DH will be not be impartial. They use it as a convenient argument in order to ;

• weaken the TURC by eliminating an effective commissioner
• deflect attention from the corruption already exposed and prevent more being exposed
• taint the work of the TURC and thereby mitigate the findings of the commission against them
• minimise the political damage to both the Union movement and the ALP by their association with corrupt practices
• generally obfuscate, throw enough mud so some will stick.

The claimants have evident bias themselves

The ACTU, the AWU and the CFMEU through their solicitors each made claims of apprehended bias against DH. How seriously should we gauge their claims of AB. Do they meet the criteria of being fair-minded lay observers?

Certainly not! The CFMEU has been implicated in wide-spread corrupt practices with many of its members likely to face criminal charges. So too the AWU with two ex Union organisers to face criminal charges, and exposure of suspect Union deals which disadvantage workers. The ACTU represents all the unions and therefore has an overarching self interest to minimise the political damage caused by the exposure of corrupt practices.

So none of the claimants are fair minded lay observers. They are clearly biased in their claims, so we should treat them with suspicion.

Some of the claimants arguments do not support Apprehended bias

I guess this last of my points is the most important. While we will generally accept that the Unions have a vested interest in discrediting the TURC and will use any argument that serves that purpose, are they arguing something they don't believe? That is a lot harder to prove. 

Indeed it is and I don't claim to have foolproof evidence but at least sufficient 'smoke' to suggest there is a 'fire'. 

Reproduced below is the reported testimony of Mr Newlinds the barrister for the ACTU at the TURC arguing the case for Apprehended Bias; - 

11.03am: Now, Mr Newlinds focuses on Justice Heydon’s reputation: “We know that you’re the Honourable Dyson Heydon. When I say we, I mean the lawyers in this room, and we know that you have particular skills as a lawyer and as a judge and for that matter as an academic.”

He goes on to make the interesting point that, while the “hypothetical bystander” may not know about Heydon’s “razor sharp mind” or “mind like a steel trap”, they would bear in mind Mr Heydon’s resume.

He says: “We know that you’re a man with a reputation for having a razor sharp mind, to use another cliche, a mind like a steel trap. I think my learned friend is correct in saying that the hypothetical bystander that this matter must be judged by, he or she doesn’t know that ... They do know that you were appointed to the High Court, that you were appointed to the COA of NSW, then to the HC of A and served for the best part of a decade, I think, and that the executive branch of government has seen you as a person appropriate to carry out this very important, difficult and fact intensive inquiry. (source The Australian )

Paraphrasing , Mr Newlinds argues that those in the legal fraternity respect DH 's ability to weigh arguments and come to impartial rulings, but that the lay observer does not know this and therefore may see him as being biased.

In other words, Mr Newlinds argues solicitors like himself accept that DH is impartial, but despite this DH is guilty of Apprehended bias as a lay observer would not have this insiders' knowledge.

However returning to the clarification of how to apply the 'apprehended bias' criterion; -

" the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information." ( Source Reasonable apprehension of Bias )

So the lay observer must also acquaint themselves with those in the industry and therefore would come to the same conclusion as Mr Newlinds has, that DH will indeed be impartial.

Mr Newlinds has, perhaps inadvertently, presented a cogent argument for dismissing the Apprehended Bias claim against DH.


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The 'Industrial Peace' Racket

"Houston we have a problem"

For those too young to remember "Houston we have a problem"* were the first, somewhat understated, words of astronauts in space alerting 'head-office' when some malfunction was identified. Those of us of the right maturity have these indelibly forged into our psyche as heralding a potentially serious problem.

Indeed I believe we have a problem.

Watching and listening to the media circus over the last week, one is left with varying views of Bill Shorten's appearance at the Trade Union Royal Commission (TURC).

He was caught with "multiple smoking guns",  and "should resign", or that the whole TURC is a Liberal, or more accurately, "Tony Abbot witch hunt" and labour leaders are being "victimised". Indeed many a shrill defender of Shorten's honour has gone out of his way to get some sort of hot quote about the wonderful Unions and the hateful Tony Abbott.

I guess this is the norm for today's media frenzies, but what can we poor mugs take away from this. 

Firstly, whether the intentions of the LNP, or Tony Abbott, if you prefer, in establishing the TURC was political, is irrelevant, as its success will ultimately be judged only when it has run its course. Those criticising so volubly today seem to have other motivations themselves.

Further, the late declaration of a political donation, as noted by many is not uncommon. The focus on this aspect of his testimony by many journos and Labour defenders is simply to deflect from Shorten's failures. 

But it was not a political donation at all. More likely it was some sort of 'fringe benefit' as a by-product of an EBA deal. This of course presents the real problem. 

"The AWU has been seen as a moderate Union which has worked in harmony with business for the betterment of both workers and employers". So its supporters would say. But, if the AWU, as a matter of course, accepted payments from companies as part of an EBA negotiation then we have a problem.

Extortion is a criminal offense of obtaining money, property, or services from a person, entity, or institution, through coercion. It is sometimes euphemistically referred to as a "protection racket" since the racketeers often phrase their demands as payment for "protection" from (real or hypothetical) threats from unspecified other parties.  https://en.wikipedia.org/wiki/Extortion

We are all familiar with extortion or protection rackets, often associated with the Mafia, whereby henchmen would demand property owners pay to ensure their premises were protected from thugs. If payment was not made their property was vandalised or burnt down and perhaps the owners would be bashed for good measure, by the very same thugs demanding money. It only took a few brave souls to decline these 'protection services' and receive their punishment to ensure others would fall in line and make their regular payments.

Do you notice any similarity with the apparent modus operandum of the AWU in their negotiation of EBA's with employers?

As per Shorten's testimony, the AWU negotiates, a perhaps unstated but implied, 'industrial peace' in return for benefits, not only for the workers but for a financial return to the Union itself!

This payment to the Union is in effect a benefit to the Union bosses who use these funds either for advancing their Union as it competes for members against other Unions, or for, let's call it 'private purposes'. Such as those derived, for example by the likes of Williamson, Thompson, Jackson and let me include Shorten.

If the employer fails to comply, there is an implied 'menace' of a strike or a boycott or in the case of some of the more thuggish unions, sabotage and well.. thuggery.

In the same way as the property owners faced with extortion learnt to pay, employers faced with the threat of labour strife have learnt to pay. It is easier.

A Union should never accept employer payments

There is a legitimate role for Unions in working on behalf of their members to improve working conditions. But when a Union accepts any payment directly from an employer in any form it is not just a 'conflict of interest', it is a crime. It is akin to 'demanding money with menaces', it is eliciting a 'bribe', it is 'extortion'.

Where is the media?

I am surprised that almost all media has avoided calling the Union's role in accepting direct payment from employers a crime.

Houston this is the problem: Not only do we have rampant extortion in operation within our industrial relations system, but our media seem to find it acceptable!

* I have been advised I misquoted - see https://en.wiktionary.org/wiki/Houston,_we_have_a_problem. 


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