Industrial negotiations in Australia seem to be tough, rough and lengthy. Perhaps they give us a taste of things to come in New Zealand over the next two or three years.
Unions will want to make the most of the Government’s promised industrial legislation, including fair pay agreements. Hopefully Kiwis resolve things in a friendlier manner than the negotiations between BP and its workers at a refinery in Kwinana, Western Australia.
BP and the union were engaged in a long-running dispute for a new industrial agreement at Kwinana. The employer wanted major changes to existing conditions. Arguments about the old agreement restricting productivity, efficiency and flexibility were put forward by the company. The dispute dragged on.
Scott Tracey and his wife Rhyanna Tracey decided to help the union cause. They prepared a video entitled Hitler parody and EA negotiations.
The video was prepared using a website called Caption Generator. The website contains a small collection of video clips with non-English dialogue and allows the user to add subtitles to create an alternative story or theme for the video.
The most popular video clip was one from the German language movie Downfall. The clip showed Adolf Hitler in his bunker in Berlin as he realised that the complete defeat of Germany could not be avoided and Berlin would soon fall.
There were thousands of these parody videos based on this movie by the time the Tracey’s created theirs. People use these video clips in a way that can be said to have become a meme.
Meme was coined by biologist Richard Dawkins. It is a cultural concept or behaviour which is passed from one individual to another by imitation and communication.
The subtitles added to the Traceys’ version clip parodied the bargaining for the new agreement in the Kwinana refinery. Hitler is assigned to the role of an unnamed BP manager in charge of the bargaining strategy.
He is informed that the employees have voted overwhelmingly to reject BP’s proposed enterprise agreement. He falls into a rage about the failure of the company’s bargaining strategy. He is angry about the continued resistance of the employees.
The Traceys’ video appeared as one of thousands on the caption generator website. It was very hard to find there. However, in late 2018 Scott Tracey posted a link to the video on a Facebook group, the members of which were all employees of BP at the refinery. Tracey showed the video to some BP employees working with him.
Management learnt of the existence of the video and commenced an investigation. Tracey was required to attend a formal investigation meeting at which he admitted he had shared the video. He was stood down the following day.
The company claimed that Tracey shared and distributed material which was highly offensive and inappropriate and that various BP policies had been breached.
Ultimately Tracey was dismissed in early 2019. The dismissal was effective immediately but with 4 weeks’ pay in lieu of notice.
Management felt they had been likened to Hitler and took strong exception to that. Tracey probably thought it was part of the cut and thrust of negotiations. The Australian Fair Work Commission was divided on the issue.
On appeal, the superior tribunal rejected the view that the video likened BP management to Nazis or Hitler. The video is not stating management were behaving or conducting themselves comparably to the Nazis in terms of humanity and criminality.
It drew a comparison for satirical purposes between Hitler’s situation in his final days and the position of that BP had reached in the enterprise bargaining process. The company was facing defeat according to the video clip.
The superior tribunal said that the position is even clearer when one considers the development and use of the Downfall clip as a meme. The clip has been used thousands of times in an entirely imitated way to give a satirical description of contemporary situations. This has the result of culturally dissociating it from the import of the historical events portrayed in the film. Anyone with knowledge of the meme could not seriously consider that the use of the clip was to make some point involving the atrocities of Hitler or the Nazis.
The superior tribunal acknowledged the reality of what was happening. It said that there was no doubt the clip would be understood by the reasonable viewer as satirising BP’s conduct during the bargaining process. That by itself did not make it offensive or appropriate.
The Appeal Tribunal said the industrial circumstances at the refinery at the time followed heated and protracted bargaining between the company and the union. It was entirely understandable that persons in opposing camps might engage in criticism of the other party’s position and conduct.
It would be unrealistic to expect a dispute of this nature to continue to its conclusion without any form of criticism and reproach being expressed, at least privately.
The appeal tribunal drew a distinction between criticising a party’s position as opposed to criticising personally the individuals. So the appeal tribunal found the dismissal was unfair. Tracey was restored to his previous position with no loss of pay.
If the case had occurred in New Zealand, the outcome would probably have gone the same way, especially given New Zealand law gives some added protections to those engaging in union activities.