define('DISABLE_WP_CRON', true); First the Verdict: The true story of the Cole Commission into building and construction workers | Chris White Online

First the Verdict: The true story of the Cole Commission into building and construction workers

Book review

First published: Australian Options, No. 35, Summer 2004

First the Verdict is a first rate expose of the Howard Government’s $60 million Cole Building Industry Royal Commission as a witch hunt against the building unions. Published on the day former Minister for Workplace Relations Tony Abbott released the Cole recommendations, First the Verdict is essential reading for the current debate on the Howard Government’s repressive amendments against building and construction workers.

This critical analysis shows the travesty and the injustice of this Royal Commission used blatantly as a politically partisan anti-union tool. This true story has to be retold to as many as possible during the next election.

Jim Marr is a Sydney journalist who took the time to attend the hearings and research what was happening behind the scenes. His story is told in a straight forward style.

He describes of the colourful players that inhabit indeed a distinct world of work in the building construction industry. He tells the alarming story of the ruthless politics of the Howard Government and its anti-union strategy.

The failure of the Cole Commission to investigate the one death a week on building construction sites is a key scandal. There were no recommendations boosting union prevention of injury on building and construction sites but the opposite.

The Howard Government has introduced draconian legislation arising from Cole’s recommendations. The legislation introduces drastic restrictions denying the right to strike. Increased “law and order” enforcement through a special building industry police force against striking unionists is the aim. Howard’s new Workplace Relations Minister Kevin Andrews ideologically mouths the same outrageous spin against building unions. He faces some difficult hurdles in the Senate.

Jim Marr begins early 2001 when the electoral prospects of Howard looked bleak. Reith had resigned and a very ambitious Tony Abbott was the Minister and keen to out shine Reith as a new right H.R. Nicholls zealot. The Government was looking for ways to make union militancy and trade union power return to the centre stage of Australian politics.

Political stunt

On July 28th 2001 the Australian Financial Review described Howard’s political strategy: (that is the same for the 2004 election against Simon Crean).

“Take perceptions that Beazley is a weak or indecisive leader or the captive of powerful interest group like the trade union movement. Mix those perceptions with images of thuggish unionists. Add a few facts about the influence the trade unions exert over the ALP’s policy process and pre-elections and point out that union membership has been declining steadily over the past decade. Create a firm impression in the eyes of voters that Beazley won’t stand up to the union movement and hopefully inflict serious political damage.”

Union bashing has a long track record for the new right zealots in Howard’s government. But more than that, Howard believes his rhetoric of the individual over the collective should be enforced with a frontal political assault on the rights and institutional protections afforded unionists.

Building workers are tempting targets. Like the wharfies they are seen as macho, hairy-arsed men likely to engender little sympathy from middle Australia swinging voters.

Jim Marr lists building industry features Howard does not like. Commercial construction is one of the bastions of high union density when membership levels are falling.
The industry records a high level of strikes as measured by lost working days.
Union leaders are outspoken critics of the Howard government.
Union members have been and continue to be highly visible in anti-Government demonstrations.
Building unions led growth in above- award wage outcomes. They set the pace in industry wide improvements including superannuation and independent trust funds for the protection of entitlements and shorter working hours throughout an industry settlement for a 36 hour week in Victoria. Building unions because of their industry have to use pattern bargaining.

Pattern bargaining outlawed

Pattern bargaining or industry or multi-employer bargaining, although normal for many years and provided for under International Labour Organisation conventions signed by Australia, is anathema to Howard who has railed against it repeatedly.

The government is a champion of its direct opposite, “genuine enterprise bargaining” at a single business, in which contracts are drawn up between a single employer and the workforce without reference to agreements negotiated elsewhere or the union.

“Genuine enterprise bargaining” is a highly ideological concept, born of the theory that broad class or industry settlements distort the market. Government should compel workers to identify with their individual employer. Other workers even in the same industry should be regarded as competitors. Normal union organising across the building industry would be tagged unlawful.

In July 2001 Abbott announced his Royal Commission. Media commentators immediately saw it for what it was – a desperate party-political ploy.

Editorial writers generally anti- union and often pro-Liberal said: Canberra Times:”… expensive election stunts.” The Australian: ‘is the royal commission the political stunt? yes.’

The Australian Financial Review:”…there are more effective ways for the Government to fix the industry than by pursuing an expensive exercise that smacks of political opportunism in an election year.”

Sydney Morning Herald:”… with inquiries of this sort, carried out at substantial public expense, are seen to have been set up primarily to embarrass the opposition, the currency of judicial investigations tends to be debased.”

The Courier Mail: “the inquiry and its timing are intensely political. It is not difficult to imagine lurid accounts been given by counsel assisting the inquiry before any evidence is called and tested.”

Jim Marr traces the impetus from Abbott’s Office of the Employment Advocate Jonathan Hamberger who recounted rumor and anecdotes and allegations of corruption and thuggery in the building construction industry. Despite all the salacious headlines about alleged illegalities, the Cole commission concentrated on union pattern bargaining with the right to strike and union involvement in occupational health and safety.

But as Marr recounts there was no focus by Cole on bottom of the harbor tax rorts, business corruption, phoenix operations, contractors’ negligence in workplace safety, companies exploiting illegal immigrants and industrial relations breaches by employers. Over 90% of the Commission’s time was spent against unionists. There were few allegations against employers.

Jim Marr introduces us to Barbara a demolition contractor with a dodgy safety record and exploding allegations, Craig the star witness severely discredited, Jothan the public service type, Eddie sometime director whose companies keep hitting the wall and Robin the mother demanding justice for her dead son and many more characters.

National disgrace

This Cole Commission is a national disgrace. There is no justification for undermining internationally accepted freedoms of workers to be in unions, to organise, collectively bargain with the right to strike, to have right of entry, for unions to train workers with building skills and to voice political opinions.

What is worse is that in an industry with deaths and injuries through building contractors negligence, nothing is to be done. No building employers were charged with negligent safety practices. Nothing other than draft legislation that denies unions their rights in preventing building accidents.

Unlike courts, Royal Commissions like Cole are not bound to give free reign to relevant contending views nor to provide parties with the normal protections offered under common law. Hearsay evidence, rumor and opinion were freely allowed. Witnesses were compelled under threat of prison to give evidence even when it was self-incriminating.

Inquisition by ambush was the style. There was an inability of unionists publicly accused of illegal behavior to adequately defend themselves and to test evidence in an effective manner. Examples of lurid headline grabbing allegations being led by counsel assisting that were subsequently found to have been inconsistent unreliable or just plain wrong are exposed by Jim Marr.

Drawing on Lewis Carroll Alice’s Adventures in Wonderland, “sentence first – verdict afterwards”, Jim Marr uses Justice Murphy’s view that the Royal Commission process was the exact opposite of a court of law – an upside-down world where the verdict came first and the trial followed. The expose of the Commission’s process shows that “Never hold a Royal Commission unless you know the results”.

The scandalously excessive budget of the Royal Commission was $60 million! 125 full-time investigators and lawyers, the Office of the Employment Advocate, agents of the Federal Police and the National Crime Authority were on the gravy train. $683,000 was used for media spin. Cole was as a commercial solicitor in Sydney who worked for the Liberals, was appointed to the New South Wales Supreme Court and brought a lofty military bearing not entirely surprising for one who served as a Commodore in the naval reserve. Cole’s annual salary was over $660,000!

Jim Marr doesn’t pull punches in his chapter on unions, the House Divided. He describes the early divisions in the Building unions, particularly the CFMEU, with old elements of the BLF still fighting historical battles. Political divisions on the left are not good with union problems coming up with a united response to the biggest threat the union faced in decades.

One incident is the NSW branch winning significant improvements in wages and conditions on the Olympic Games while helping bring the games in under budget. The Olympics was a model cooperative approach in which government unions and employers work together as partners to achieve the best possible deal for both workers and the wider community. These gains were not enough to some of their comrades who opposed them to push up wages and conditions higher.

There are great stories of strong building union leadership in this struggle. The book ends with an optimistic John Sutton, CFMEU National Secretary.

“The value of collectivism is being fought over, it used to be called mateship. The need to work together, not against one another and the belief that you stand up for your mates and your colleagues. This is the belief that holds families, communities and unions together. Australia is founded on the principles of collectivity and it will take more than a Liberal Government with a zealous industrial relations agenda and a kangaroo court to change that.”

I look forward to the next edition of “First the Verdict” where Jim Marr can update the drama and the contest.

Howard’s politically partisanship strategy has been unraveling. More exposes of union bashing as the government’s aim is coming out. Building union leaders are not being jailed by the courts despite the Cole Commission reporting so-called “illegalities”. Divisions amongst the building employers are emerging, between the anti-union political right-wing zealots and those who want to get on with building and the unions and avoid the politics.

ACTU Opposition

The ACTU has run ads warning ˜Who’s Next?” a campaign warning all workers about the impact of the Howard government’s proposed building industry legislation.

ACTU Secretary Greg Combet said that the union movement was committed to alerting all workers about the Howard government’s agenda.

“This government started with workers on the waterfront. Then they targeted construction workers. We now see them threatening university staff, and it is very clear that the agenda of the new industrial legislation is not about making the building industry more productive, it is about setting new low standards for workers’ rights in Australia.”

“The legislation would severely punish employees and unions for being involved in normal organising and bargaining for better wages, conditions and safety.”

Workplace Relations Minister Kevin Andrews response is to challenge the ALP “whether they are prepared to separate themselves from the lawlessness of this industry or bow to the thuggery of well-known and vocal elements.” An indication of the Liberal politics.

Mass stopwork rallies of building unionists with street theatre show continuing dissatisfaction with the witch hunt. Building unionists are exercising their right to strike in political protest.

The Government was to restrict the right to strike of university staff, nurses and teachers. The Government’s attack on university staff, their independence and workplace rights lead to a national strike on October 16th. The new Minister Kevin Andrews has however introduced amendments in November restricting the right to strike of all workers.

Right to strike under threat
“Australian workers’ rights to take industrial action would be seriously undermined by this legislation,” the ACTU President Sharan Burrow says.

“The changes would make it nearly impossible for many workers to collectively bargain for better wages and conditions. They would remove workers’ rights to take industrial action in many circumstances and give employers new powers to avoid bargaining with their staff.”

“The legislation would effectively seek to ban the right to strike. Employers who are not even involved in an industrial dispute would be able to prevent employees from taking industrial action under the legislation”.

“The legislation is extreme, unnecessary and at odds with international law. There is no evidence to justify the bills. The level of industrial action in Australia is at record lows and long-term productivity growth is at record highs. The Howard Government is again taking the side of employers against workers. The changes would tip the balance in workplaces even further in favor of employers. The basic rights of employees need to be strengthened, not weakened. The government’s changes would persecute workers for trying to bargain or to take industrial action over legitimate claims for better wages or workplace conditions.”

Every worker will be targeted by the Howard Government’s attack on unionism and workers’ rights. The political electoral cycle turns. Will Howard’s strategy back fire in the run up to the election?

Rights on site campaigns to abolish the ABCC

Rights on site campaigns to abolish the ABCC


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