Gillard’s construction laws:CCU

FRAMING AN ACCURATE DEBATE ABOUT THE CONSTRUCTION INDUSTRY LAWS CCU Senate submission august 2009

2.1 In order to have a meaningful public debate about the DPM’s Construction Bill it is important to be clear about the nature of the existing laws and the laws as they would be if the Bill were passed.

2.2 The BCII Act does not and has never generally dealt with criminal conduct. It is concerned with the regulation of certain forms of industrial behaviour. Alleged breaches of the BCII Act can result in civil proceedings and where breaches are proved, civil not
criminal, penalties. The same could be said of the Act if the amendments made by this Bill were passed. This is not a semantic distinction. It goes to the heart of the debate
about the justifications which have been used to underpin these laws. Arguments about the need to retain the laws because of widespread violence or threats of violence, criminal damage to property, extortion and the like are not only misplaced but have the effect of distorting the policy debate and the public perception of what the laws are designed to achieve.

2.3 A lack of understanding about the nature of the laws is widespread in the community.
The public commentary surrounding the Bill perpetuates the misconceptions surrounding the laws. In some cases it is difficult to discern whether the commentary is
simply inaccurate or intentionally misleading. An opinion writer for the Melbourne Herald Sun has described the BCII Act as a law that ‘compels building workers to give evidence to regulators investigating criminal activity, or face jail.’3 The Adelaide
Advertiser has editorialised about the ‘widespread corruption’ in the industry and the need to ensure that employers, contractors and suppliers have the right to operate free
from ‘threats of physical violence.’ On 9 June 2009, ABC News reported that the Australian Building and Construction Commissioner [ABCC] was ‘set up by the previous government to crack down on violent behaviour.’5 Many employer organisations have made similar public comments, a number of which are repeated in submissions to this inquiry.

2.4 Of most concern however are the ongoing references by lawmakers to the BCII Act and the Bill as antidotes to criminal behaviour. This problem extends right back to the time
when the BCII Act was first brought before the Parliament.

There are two criminal offences created by the Act. The first is refusing to provide information/evidence/documents when required under the coercive powers, discussed below. The second is the disclosure of ‘protected information’ by ABCC officials/staff.

2.5 In the Senate debate over the introduction of the original BCII Bill, Western Australian Senator (and lawyer) Senator Johnston raised the spectre of criminality to support the
passage of the legislation. Senator Johnston was a member of the Senate Committee that conducted an extensive inquiry into the 2003 Bill. He should have been aware that the Bill had nothing to do with eradicating criminality from the industry. He said:-

This industry is in desperate need of reform. It is in desperate need of a code of practice with real criminal teeth. Nigel Hadgkiss, may I say, is a great man of esteem – a crime
fighter. He is used to fighting organised crime. That is what is needed in this industry – a fighter of organised crime. This legislation will go some of the way to returning this
industry to lawfulness.6

2.6 In its pre-election policy announcements, the ALP was also apparently unable to appreciate just what work the BCII Act and the ABCC do. In its ‘Forward with Fairness
Policy Implementation Plan’ where the limited rationale for the continuation of the ABCC is set out, the ALP in Opposition stated ‘A future Rudd Labor Government will not
tolerate intimidation or violence by any party in the building and construction industry.’7
At the recent ACTU Congress, in the context of the discussion about the specialist Fair Work body that would replace the ABCC, the Deputy Prime Minister spoke of ‘criminal
damage to vehicles resulting in arrests, threats of physical violence and intimidation of individuals, including damage to a private residence’8 and promised that, as part of its
commitment to ‘fairness and decency at work’, the Rudd Labor Government would do everything necessary to ensure such conduct did not recur.

2.7 In the Second Reading speech for the Bill there were references to pockets of the industry where ‘violence and intimidation’ occur and to the need to comply with laws
relating to the payment of wages and sham sub-contracting as well those outlawing ‘violence and intimidation.’

2.8 The target of the BCII Act, and the ABCC, has always been unlawful industrial action. This is dealt with by way of civil sanctions. In the debate about any powers that a
government agency should have to investigate these matters the starting point should be that the powers must be appropriate having regard to the types of matters that are being investigated. The point was well summarised by Williams and McGarrity in their submission to this Committee in the 2008 inquiry:-
ABCC is primarily responsible for monitoring, investigating and enforcing civil law, or more specifically, federal industrial law like the BCII Act and industry awards
and agreements. Investigatory powers of the type bestowed on the ABC Commissioner had previously been unheard of in the industrial context. In this light, the powers of the ABCC are not only extraordinary, but unwarranted…Such powers
Senate Hansard 5 September, 2005 page 24 3 June 2009.
should not be bestowed on a body dealing with contraventions of the civil law and
potentially minor breaches of industrial instruments.’9

2.9 No-one has suggested that the current criminal law is inadequate in dealing with
criminal behaviour whether it occurs in the workplace or elsewhere. The Committee is not being called on to consider criminal sanctions or measuresto assist in bringing
criminal behaviour to account. criminal behaviour whether it occurs in the workplace or elsewhere. The Committee is
not being called on to consider criminal sanctions or measures to assist in bringing criminal behaviour to account. Consequently, references to the spectre of criminality in
the course of this debate should be assiduously avoided. Particularly in its discussion about coercive powers, the report of this Committee must deal with the question of
their desirability and necessity in an industrial context.

2.10 Whether the BCII Act is repealed as we suggest, or amended in accordance with the
Bill, the focus of investigations by the FWO or the Director will remain the same. That is, the FWO or the Director will be responsible for examining alleged (civil) industrial
breaches. In that case there is no justification for the ongoing availability of coercive powers.

3. RETENTION OF COERCIVE POWERS

3.1 Coercive powers have no place in industrial law.

3.2 The industrial jurisdiction deals with matters that do not warrant the use of coercive powers in the same way as other areas of the law might. For example industrial issues
do not generally raise matters of national security, fraud on the public revenue, serious corruption or criminality or public safety. Consequently, the public interest considerations that might weigh in favour of coercive powers in aid of enhanced
investigatory measures or strict enforcement in other areas are not present in the industrial context. To the contrary, the public interest very much favours keeping such powers out of the industrial arena to ensure that the exercise of industrial rights such as the right to freely associate, organise and take industrial action is not tainted with the quasi-criminal overtones and general opprobrium reserved for criminal matters.

3.3 All previous government bodies charged with ensuring compliance with industrial laws up to and including the FWO, have performed their functions without coercive powers.
As far as we understand there has been no suggestion that these types of powers are necessary to ensure industrial compliance more generally. The Fair Work Act provides the inspectors of the FWO with a wide range of powers which are similar to those which have applied up to now for all other industries. These powers are adequate to allow the
inspectors to carry out their duties effectively.
not tainted with the quasi-criminal overtones and general opprobrium reserved for criminal matters.

3.3 All previous government bodies charged with ensuring compliance with industrial laws up to and including the FWO, have performed their functions without coercive powers.
As far as we understand there has been no suggestion that these types of powers are
necessary to ensure industrial compliance more generally. The Fair Work Act provides the inspectors of the FWO with a wide range of powers which are similar to those which
have applied up to now for all other industries. These powers are adequate to allow the inspectors to carry out their duties effectively.

3.4 Up until 31 March 2009 the ABCC had exercised coercive powers by issuing s 52 notices on at least 175 occasions. The use of the coercive powers has now resulted in the second prosecution for allegedly failing to comply with a notice under s 52 of the BCII Act. Before the conclusion of this inquiry, the worker in question faces the prospect of six months imprisonment for an alleged failure to attend a compulsory interview over an issue on a worksite at Flinders University in South Australia.

‘The Investigatory Powers of the Australian Building and Construction Commission (2008) 21
Australian Journal of Labour Law 246 at pages 274-275.

From the Senate submission made on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Australian Workers Union (AWU),
the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Construction, Forestry, Mining and Energy Union (CFMEU) [the Combined Construction Unions - CCU].

1.2 The CCU opposes the maintenance of a separate and additional set of industrial laws for
the Australian construction industry as set out in the Building and Construction Industry Improvement Act 2005 (Cth) [the BCII Act]. The unions believe that the BCII Act should
be repealed in its entirety. That position was put by the CCU in our submission to this
Committee in its inquiry into the Building and Construction Industry (Restoring Workplace Rights) Bill 2008 [the 2008 inquiry] and to the inquiry commissioned by the Federal Government and conducted by the Hon. Murray Wilcox QC in 2008- 2009. We refer the Committee to those submissions and rely on them for the purpose of the present inquiry.

See the full submission on Ark’s Tribe

www.arkstribe/org.au

Rights on site campaigns to abolish the ABCC