ACTU and CFMEU on Abetz’s new attack on building unions: the ABCC returns

Followers of this blog are aware since 2005 of my many arguments against Howard’s repression of building and construction unions by the ABCC, likened to the secret police Stasi powers but against union action, and the campaigns Rights at Work and the support Ark Tribe campaign (see http://chriswhiteonline.org/2013/08/3621/
and other ABCC links and references below).

Now Abbott and Abetz reintroduce with new amendments further repression. I strongly recommend a downloading of the detailed ACTU submission, so unionists can educate, organise and agitate. Then read in detail the CFMEU submission.

The ACTU and building unions claim in 2014 not only a union and community campaign but industrial action.
“The ACTU Executive affirms its support for any worker who is prosecuted for non-compliance with coercive interviews. If necessary, the ACTU Executive will co-ordinate a campaign of protest and industrial action against the revival of the ABCC and will additionally support any worker who is prosecuted or jailed by the Commission.” It said the attack on construction industry unions was an attack on the whole movement, and would be treated as such. I add we have to debate whether this is adequate.

Please also read the MBA’s submissions and other corporate giants to see their agenda. It may well be that the current Senate will delay the operation until the new Senate passes it – hard to see Palmer and the rest not supporting Abbott/Abetz/corporate lies. They cite the CFMEU action against Grocon http://chriswhiteonline.org/2012/09/grocon-2-negotiations-with-cfmeu/

We shall see what the new Senators do.

But first the ACTU statement with a summary and link to its submission.

Submission on the Building and Construction Industry (Improving Productivity) Bill 2013 25 November, 2013
The ACTU strongly opposes the Building and Construction Industry {Improving Productivity) Bill 2013 and calls for its rejection.

The ACTU regards the existence of special laws and a special inspectorate for the building and construction industry – as they existed between 2005 and 2012 by virtue of the Building and Construction Industry Improvement Act 2005 – as a shameful aberration in Australia’s industrial history. The regime operated oppressively and unfairly against workers and constituted a serious breach of Australia’s international obligations.

The ACTU continues to strongly oppose the need for special laws in the building and construction industry.

Workers in the building and construction industry should be subject to the same industrial laws as apply to other workers. This is consistent with the fundamental principle of equality of all persons before the law. To subject any group of workers or industry to special more punitive laws is unnecessary and discriminatory.

The ACTU does not accept that there are any special or unique features of the building and construction industry that warrant or justify a departure from the standard model of industrial regulation in Australia.”

Worth noting
Howard spent $259 million ensuring building workers had less workplace rights than other unionists.The ABCC operated shamefully, oppressively, coercively, and unfairly against unionists and there is no need for such special punitive labour laws- details are given. It is incorrect to allege any union criminality.Now Abbott will spend more and be more repressive.

There is a section rejecting as a myth that there will be an increase in productivity with the return of the ABCC.

A section goes through the details of the breach of ILO international labour norms, in particular legitimate industrial strike action that is labelled “unlawful”, that imposes penalties and sanctions, and government rules making employer project agreements with unions unenforceable, restrictions on collective bargaining and rights to association, and repressive policing powers into the proper internal workings of unions. The Act breaches civil and political human rights.

Note also the new Bill widens the scope to get the MUA on off-shore oil rigs and the TWU transporting building materials and manufacturing of pre-fabrication materials.

As readers of this blog know, the Fair Work Act retains WorkChoices’ severe restrictions of the right to strike, penalising industrial action, however, this new Bill goes even further outlawing nearly all legitimate industrial action and bans.

There is a special new provision targetting and making “unlawful” so-called picket lines or community assemblies and anyone organising or engaging in such solidarity actions. Any person can seek an injunction.
This is to target solidarity actions such as http://chriswhiteonline.org/2013/05/on-the-community-assembly/

It is designed to further intimidate the Bob Carnegie’s in support http://chriswhiteonline.org/2013/08/bob-carnegie-contempt-case-dismissed/ .

Note the section that shows it is a myth there is widespread industrial action on building sites.

The only criminality is the building employers’ actions responsible for deaths and injuries on sites.

Note the return of the coercive investigative powers against workers in workplace disputes such as denying the right to be silent when questioned by the ABCC “inspectors” and risk 6 months jail – worse than the police powers against terrorists.

The Gillard government did not repeal but limited these powers (http://chriswhiteonline.org/2012/03/abcc-goes-in-name-only/).

But it did have the industrial relations approach that after a dispute is settled where an employer reached an agreement and the employer did not want to pursue the union this was the end of the matter. But this is changed so that even after a dispute settlement is reached, when the industrial relations issues are agreed, this repressive state apparatus the ABCC can still pursue the union and workers for breaches and apply penalties.

Note that the Bill applies retrospectively to chase union action in the past.

The ACTU has detailed submissions on these points. Please download and read here
http://www.actu.org.au
/Publications/Submissions/SubmissionontheBuildingandConstructionIndustryImprovingProductivityBill2013.aspx

You can access the Bill here http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r5129_first-reps/toc_pdf/13207b01.pdf;fileType=application%2Fpdf

Christopher Pyne second reading speech http://www.workplaceexpress.com.au/files/2013/BCI%28IP%29BillSecondReadingSpeech.pdf

In the Orwellian traditon of the big lie, Minister Abetz claimed the Bill complies with human rights, whereas the opposite is the case!

Now here is an earlier article by Dave Noonan CFMEU : “Discrimination not acceptable
THE first sitting of the new federal parliament will see the Abbott government move to reinstate the Australian Building and Construction Commission.

This should be of concern to the community: these laws, which don’t apply to any other sector of the workforce, discriminate against construction workers.

The government apparently believes that discrimination against blue -collar workers in a particular industry is acceptable.

If they had plans to do the same to other sectors of our community on the basis of gender, sexual orientation or ethnic background, there would be, justifiably, an outcry.

More than a quarter of a billion dollars of public money has been spent on the Cole Royal Commission, the ABCC and its successor Fair Work Building and Construction to attack the rights of construction workers and to weaken the ability of their unions to organise on sites.

The powers proposed for the ABCC are extreme. They include coercive powers, secretive interviews and imprisonment for those who do not co- operate.

Those subject to interviews have no right to silence, or to representation by a lawyer of their choice.

Support for such extreme laws is couched in terms of the industry being unlawful. The ABCC cheer squads mutter darkly of union connections with organised crime and bikie gangs, citing sensationalist media coverage. What they never do is explain how industrial laws could cure criminality, even were criminality found to be endemic in the industry (a contention that doesn’t stand up to scrutiny in any event).

It was on the basis of similar lurid allegations of fraud, corruption and violence that the Cole Royal Commission was called in 2001 by Tony Abbott. There was scepticism over Abbott’s motives. The Australian’s editorial asked the rhetorical question: “Is the Cole Royal Commission a political stunt ? “, answering with a resounding “Yes “.

Eighteen months and $66 million later, no criminal charge was ever laid. One employer faced a civil penalty for breaching industrial law and one witness was convicted of giving false evidence. So, the Liberal Party and employer groups had shifted the argument to an industrial relations frame.

It is no coincidence that we are seeing another deluge of false and/or unsubstantiated allegations of criminality in the construction industry as Abbott goes back to the future with his reanimated ABCC bill.

A cynic (on this matter I am one) may conclude that a moral panic is deliberately being generated to justify laws unacceptable to the community if subject to reasoned debate.

Construction workers and their unions have achieved much. Data consistently shows that union workplaces are safer and better paid.

But there are problems. Sham contracting, tax evasion and rorts that see workers lose wages and entitlements are commonplace. In an industry where developers and contractors are keen for more profits and corners are often cut, safety is an ever present concern.

Construction workers and their union representatives often experience sites where safety laws are not observed. They see death traps and health hazards because of employer negligence. They see workers maimed and killed on the job. They risk discrimination and blacklisting if they speak out.

The ABCC will do nothing to address these issues; ordinary construction workers will feel the weight of these laws, forced to think twice about taking action about bad safety. They remember Ark Tribe, who faced prosecution and possible imprisonment under the ABCC laws.

It should be a concern to all of us that for workers in one industry, the right to silence, the right to question an employer’s judgment about safety issues without the threat of prosecution, and the reasonable expectation that a government body will not always favour the boss in an industrial dispute, will disappear if Abbott succeeds in returning to the past.

The problems of the industry require real solutions for the underlying problems facing construction workers, subcontractors and builders. This will not be achieved by demonising construction workers and their unions, or by discriminatory, repressive laws.” This article was published in The Australian 12/11/2013 Commentary page 12.

Dave Oliver First the building unions, then who next?
What concerns us most is that this is just the beginning of an agenda by the Liberal Party, in concert with big business, to smear unions and union members and take them out of the equation because unions represent the only real organised challenge in society to their bankrupt ideology of “let ‘em rip” free markets.

Under WorkChoices, the Liberal-big business coalition struck at the very heart of working conditions, and it was only unions that stood in their way and saw off those unfair laws.

They have learnt from that, and their strategy this time around is to first weaken unions, and then go after wages and conditions. And they will start with the building unions who have been at the forefront of many of the improvements to working conditions that we now take for granted.

The old ABCC used these coercive powers on at least 200 people, almost all construction workers. They were taken off sites and interviewed, with no right to silence and no choice of lawyer. For months the threat of a repeat interview was held over them. They were subject to the stress of being unable to tell even their family about what had happened, at risk of jail.

Eventually the case of Ark Tribe a worker who defied the ABCC and whose case was thrown out of court, forced it to scale back its abuse of workers’ rights.

( see http://chriswhiteonline.org/2009/06/arks-case-abolish-abcc/ and as well http://chriswhiteonline.org/2009/06/construction-stasi/),

All Australians should be concerned about the existence of a body that takes basic rights from workers from one specific industry, particularly on the flimsy grounds put forward by ABCC supporters. Construction workers should be treated the same as all other workers, not subject to the stress of arbitrary interrogations. Read more here
http://workinglife.org.au/2013/11/04/oliver-abcc/

Here is earlier post on the ACTU http://chriswhiteonline.org/2013/10/actu-on-coming-attack-on-building-workers-abcc/

2013-05-07-09-22-40

Revamped building watchdog takes us back to the Howard Government’s attack on workers’ rights Construction workers
Tony Abbott has confirmed his revamped Australian Building and Construction Commission will continue its predecessor’s attack on workers’ rights by appointing right-wing ideologue John Lloyd and former ABCC Deputy Commissioner Nigel Hadgkiss to the Fair Work Building Industry inspectorate.
http://www.actu.org.au/Media/Mediareleases/RevampedbuildingwatchdogtakesusbacktotheHowardGovernmentsattackonworkersrights.aspx

Back to the Future
http://workinglife.org.au/2013/10/21/its-back-to-the-future-for-the-building-watchdog/

Rights on site campaigns to abolish the ABCC

Rights on site campaigns to abolish the ABCC

CFMEU submission on the Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013
Submission 7 Senate Education and Employment Legislation Committee

1 Introduction
1.1 On 14 November 2013 the Federal Government introduced the Building and Construction Industry (Improving Productivity) Bill 2013 (the BCIIP Bill) and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 (the BCIIP C and T Bill) into the House of Representatives. The BCIIP Bill substantially reproduces and expands on the terms of an earlier Act, the Building and Construction Industry Improvement Act 2005 (the BCII Act), which was replaced by the Fair Work (Building Industry) Act 2012.
1.2 On 14 November, 2013 the 2011 Bills were referred to the Senate Standing Committee on Education and Employment for inquiry and report. Submissions were required by 22nd November, 2013.
1.3 The 2013 Bills re-establish the Australian Building and Construction Commissioner (ABCC), by replacing the Office of the Fair Work Building Industry Inspectorate (FWBC), and restoring the coercive powers which were available to it under the BCII Act. Like the BCII Act, Chapters 5 and 6 of the BCIIP Bill include building industry specific provisions relating to unlawful action and coercion, and restore higher penalties for contraventions of those provisions against unions and other bodies corporate. Other changes include:
(i) Expanding the definition of “building work” in the BCIIP Bill to “transporting or supplying goods to be used in [building work], directly to building sites (including any resources platform_ where that work is being done”.
(ii) Extending the definition of “land” in the BCIIP Bill for the purposes of defining “building work” to include “land beneath water” (that is, to offshore building work).
(iii) Prohibiting “unlawful picketing”.
1.4 Further, transitional provisions under, the BCIIP C and T Bill provide that:
(i) Restored powers, including coercive powers, to obtain information shall apply in relation to any contravention or alleged contravention of the former BCII Act and the FW(BI) Act; and
(ii) The ABCC (or an inspector) may begin or continue to participate in proceedings even if matters have been settled between the parties and reliance placed on the settlement provisions of the current legislation. This introduces an element of retrospectivity into the Bill.

1.5 Many features of the 2013 Bills appeared in the 2005 Act. The 2005 Act was also the subject of an inquiry and report by predecessor Committees. We refer the Committee to the submissions which we made in relation to that Bill.

1.6 Fundamentally, the Bills adopt the flawed notion that there is a need for a separate statutory regulator for the construction industry. The creation of the ABCC in 2005 was the first time ever that an industry-specific industrial inspectorate had been legislated into existence by the Federal Parliament. Up to then, all industries had been covered by a single government inspectorate.
1.7 The notion that there should be one standard applying equally to all citizens is not simply a matter of efficiency or administrative convenience.
Equal treatment before the law is a bedrock principle underpinning our democratic tradition. If a separate statutory regulator is maintained for this industry, this will mean persisting with a range of other laws that go with it and will be an unnecessary departure from the principle of having a single set of laws for all citizens.
1.8 The BCIIP Bill also removes safeguards against coercive powers for use in the investigation of industrial issues. Prior to the BCII Act, these powers were unprecedented. No other industrial inspectorate in Australia or anywhere else in the world had ever been given such intrusive and far-reaching powers to compel its citizens to attend and face interrogation over what has happened in the workplace.
1.9 Coercive powers have no place in the industrial laws of a democracy. The history of the use and abuse of these coercive powers by the ABCC makes a compelling case for their repeal and for the abolition of the FWBC/ABCC.
1.10 The construction industry should be regulated by the same general laws applying to everyone else in the federal system. The separate inspectorate and coercive powers proposed by these Bills cannot be justified and the 2013 Bills should not be proceeded with.

2.1 The BCII Act had its origins in the recommendations of the Cole Royal Commission into the Building and Construction Industry. That Commission was created by the Howard Government in the lead-up to the closely–fought 2001 federal election. The Commission was not a response to any crisis in the industry or because of any consensus on the need for reform. It was set up purely as a political stunt designed to generate sensationalist anti-union headlines, to damage by association, the then Labor Opposition and to give the Coalition Government an electoral advantage.
2.2 The Royal Commission was an intensely politicised process from the outset. Its focus, processes, findings and recommendations were all controversial. There was no serious attempt to investigate or expose employer wrongdoing during this Commission. The focus was union conduct. Virtually without exception, the recommendations that were ultimately made neatly coincided with existing Liberal Party industrial relations policy. The Royal Commission’s recommendations went on to find their way not just into the BCII Act, but also into the ‘WorkChoices’ legislation that followed it.
2.3 Despite its enormous cost to the public (around $60m) and the intense scrutiny of union activity, and contrary to the political hyperbole both before and after the Commission, the Cole Royal Commission did not uncover criminality, violence or institutionalised corruption.
2.4 The Report did identify what it described as unlawful and ‘inappropriate’ industrial behaviour. These conclusions were disputed by the unions who complained bitterly during the inquiry that the hearing process, which was largely at the discretion of the Commissioner, did not give them a proper opportunity to present their case.
2.5 However, of the 392 instances of so-called ‘unlawful conduct’ in the Final Report, only one was ever pursued and it was ultimately dropped, without being prosecuted to finality1. Of the supposed more serious instances contained in the ‘secret volume’ of the Final Report, six years after the Report was released, the Government confirmed that 98 referrals to external agencies had resulted in one prosecution of a company for the payment of strike pay and one prosecution for giving false testimony to the Commission itself.2
2.6 One of the Royal Commission’s key recommendations was the creation of the ABCC and the conferral on that body of coercive powers to use to investigate breaches of industrial law.
1 Senate Employment, Workplace Relations and Education References Committee 25/05/04 Hansard page 81. 2 See letter from Deputy Prime Minister to CFMEU dated 13 January 2009, attached as Appendix 1.

3 Busting the Myths –
Industrial, Not Criminal Laws

3.1 It is important to be clear about what the BCII Act did and did not do. The Act made virtually all forms of industrial action unlawful and those taking the action were made subject to a fine. It also created the ABCC and gave it power to compel people to attend interviews, answer questions and/or provide documents or information relating to its investigations. These interrogations were conducted in private and interviewees were generally not allowed to disclose to anyone else what happened during the interrogation. The penalty for not complying with a notice was six months imprisonment.
3.2 There was no ‘right to silence’ under these laws. In other words, people could be compelled under these laws to ‘dob in’ their workmates over industrial matters.
3.3 Fundamentally however, the BCII Act did not and had never dealt with criminal conduct. It was concerned with the regulation of industrial behaviour.
3.4 Alleged breaches of the industrial action provisions of the BCII Act could result in civil proceedings3 and where breaches were proved, civil, not criminal, penalties were applied. 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.
3.5 Arguments about the need to reintroduce the laws because of allegations 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.
3.6 A lack of understanding about the nature of the laws is widespread in the community. The public commentary surrounding the laws perpetuates these misconceptions. 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.’4
 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.’5
 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.’6
3 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.
4 Andrew Bolt, Herald Sun Friday 19 June 2009 page 38. 4 15 June, 2009, page 16. 5
5 15 June , 2009, pg 16
6 http://www.abc.net.au/news/stories/2009/06/09/2592647.htm

3.7 Many employer organisations have made similar public comments, a number of which will no doubt be repeated during the course of the debate about this Bill.
3.8 Of most concern however are the ongoing references by lawmakers to the ABCC as an antidote to criminal behaviour. This problem extends right back to the time when the BCII Act was first brought before the Parliament.
3.9 In the BCIIP Bill Outline, there are references to “violence in city streets”, “protesters intimidating the community” and “attacks on police horses”, “throat-cutting gestures”, “threats of stomping heads in”, death threats, “shoving, kicking and punching motor vehicles” and “Columbian neckties”.
3.10 Yet, the target of the BCII Act, the ABCC, the FWBC and the BCIIP Bill, is and has always been, so-called ‘unlawful industrial action’. This is dealt with by civil sanctions.

3.11 In the debate about the 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 a Senate Committee in the inquiry into the Building and Construction Industry (Restoring Workplace Rights) Bill in 2008:-
‘The 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 should not be bestowed on a body dealing with contraventions of the civil law and potentially minor breaches of industrial instruments.’

3.12 No-one has suggested that the criminal law is not adequate to deal with criminal behaviour whether it occurs in the workplace or elsewhere. The trade union movement has always accepted that criminal behaviour must be dealt with under the criminal law. The Parliament is not being asked here to consider criminal sanctions to bring criminal behaviour to account. References to criminality in this debate are completely misplaced and show that there are no other arguments of substance to justify these laws. Particularly in the discussion about coercive powers, the real question is whether they are desirable or necessary in an industrial context.

3.13 The 2013 Bill, if passed, will not change the focus of investigations by the re-instated ABCC. In the same way as the FWO investigates alleged (civil) industrial breaches in other industries, the ABCC will have that responsibility in the construction industry. What is abundantly clear however, is that the FWO has operated very successfully without coercive interrogation powers. There is no justification for allowing such powers to continue to apply to construction workers.

The Economic Case for the Reintroduction of the ABCC
3.14 The Coalition Government and employer groups have sought to rely heavily on the so- called economic case for the reintroduction of the ABCC/FWBC. According to this argument the ABCC/FWBC has resulted in quantifiable improvements in industry productivity. Heavy reliance for these assertions is placed on an analysis originally undertaken by Econtech (now Independent Economics) which have been commissioned variously by the ABCC and the Master Builders Association. These reports are been widely criticised by a range of people, including Hon Murray Wilcox QC and various academics and economic writers.
3.15 The CFMEU refers to and relies upon the submission made by the ACTU to this Committee in relation to the economic/productivity argument which is put by those supporting the passage of these Bills. The economic case is now so widely and thoroughly discredited it should be seen for what it is, a flimsy attempt to prop up a continuation of the WorkChoices ideology with economic modelling which does not withstand scrutiny.

4 How Has The ABCC/FWBC Operated? ABCC Investigations

4.1 The ABCC’s 2009-2010 Annual Report disclosed that 55% of all its investigations were directed at trade unions.7 Only 7% of the ABCC’s investigations in 2009-2010 were directed to employers.8 Unions or employees were the subject of on average 76.5%9, or more than three-quarters of all ABCC investigations, between 1 July, 2006 and 30 June, 2009.
4.2 The types of matters which are investigated also show a strong bias towards the examination of alleged conduct of unions and workers. For example, 24% of all investigations related to alleged contraventions of right of entry provisions.10 Unlawful industrial action investigations constituted 22.5% of the ABCC’s investigation.11
4.3 The fact that the overwhelming majority of the ABCC’s investigations concerned the alleged conduct of trade unions or union members/workers was not accidental. It was the result of a policy decision of the ABCC to direct their resources toward union-related matters.
4.4 In recent times, in a belated and cynical effort to establish its credentials as something other than publicly funded union-busters (or, in the ABCC’s language, to show that they are a ‘full service’ regulator) and to carve out an ongoing role for itself, the ABCC (and for that matter the FWBC) argued that it devoted more resources to investigating employer breaches of industrial law. It has also tried to give the appearance of taking issues such as sham contracting seriously. The fact remains that the ABCC/FWBC has over many years chosen to ignore the main role of any government industrial inspectorate, namely securing the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work.12
4.5 The priorities and the allocation of investigative resources continue to be reflected in the identity of the parties who are prosecuted by the ABCC/FWBC.
ABCC Prosecutions
4.6 Since the ABCC recently reversed its previous policy of not pursuing employer breaches involving unpaid employee entitlements, there have been a number of prosecutions brought against employers. However the heavy bias of the ABCC/FWBC in targeting trade unions with these prosecutions continues to be evident from the official figures.
7 At page 29
8 11% of investigations were conducted in respect of head contractors and 15% were for subcontractors.
9 The figure is the average of the total percentage for unions and employees being the subject of investigations from 2006-2009
10 2009-2010 Annual report page 30
11 ibid
12 See ILO Convention 81 Labour Inspection Article 3.

4.7 From October 2005 until June 2011 the ABCC brought a total of 86 prosecutions against unions and union officials.13 This compared to 5 prosecutions against employers in the same period.14 In the period 1 July 2009 to 30 June 2010 there were 29 prosecutions brought against unions and union officials and none against employers.15 From 1 July 2010 to 1 June 2011, union prosecutions still outnumbered employer prosecutions by almost three to one.16
4.8 The matters which were prosecuted by the ABCC/FWBC demonstrate its bias in pursuing union and employee-related conduct. Allegations of unlawful industrial action accounted for 61 per cent of cases commenced in 2009-2010, followed by right of entry prosecutions at 26 per cent.
4.9 The prosecution of unions and workers by the ABCC/FWBC was made worse by the fact that the laws they are enforcing have been repeatedly found by the International Labour Organisation (ILO)17 to be contrary to core international labour standards including Conventions 87 and 98.

4.10 The courts and tribunals have also been strongly critical of the way the ABCC has conducted prosecutions. For example the Australian Industrial Relations Commission criticised the evidence-gathering processes of the ABCC:
‘……, the manner in which the investigation and interviews appear to have been conducted and recorded by ABCC Inspectors was to cast Mr McLoughlin in the worst possible light, rather than to provide full evidence as to the manner in which Mr McLoughlin exercised his right of entry on to sites.’18
Following this decision the ABCC wrote to the CFMEU saying it did not accept the AIRC’s observations, and further:
‘The ABCC is not obliged in an administrative proceeding, to ensure that everything in favour of the respondent finds its way into witness statements.’19
4.11 The Federal Court of Australia has also cast serious doubt on the objectivity of the ABCC making reference to it ‘casting a blind eye’ to employer illegality. The Court went on:-
‘The promotion of industrial harmony and the ensuring of lawfulness of conduct of those engaged in the industry of building and construction is extremely important, but it is one which requires an even‐handed investigation and an even‐handed view as to resort to civil or criminal proceedings, and that seems very much to be missing in this case’
13 Senate Standing Committee on Education Employment and Workplace Relations Questions on Notice Additional Estimates 2010-2011 Question No.EW0675_11
14 ibid
15 ibid
16 ibid
17 Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association – see below
18 Martino RE 2007/2179.
19 ABCC letter to CFMEU 17 July 2008.

ABCC Coercive Interviews
4.12 From 1 October 2005 to 21 June 2011, 235 notices for compulsory examinations were issued pursuant to section 52(1)(e) of the BCII Act. Further, 7 notices requiring the production of documents were issued pursuant to section 52(1)(d)of the Act.20
4.13 The breakdown by classification of persons examined by use of these compulsory notices in the period 1 October 2005 to 30 April 2011 is as follows21:-
Employees – 138 Management – 54
Union Officials – 10 Independent Witness – 1 Government Official – 1
4.15 Commonwealth Director of Public Prosecutions v Tribe (Ark) (File No: MCPAR-09-2146
Magistrates Court SA) the Court held that the Notice issued by the ABCC to construction worker Ark Tribe, was defective. Mr Tribe was therefore acquitted of the charge of
failing to attend in response to a coercive interview notice.
Since the Tribe decision, the ABCC/FWBC has confirmed that all 203 coercive notices issued from October 2005 until the date of the Tribe decision on 24 November
2010, suffered from the same defect as the Tribe notice.22
4.15 The only advice provided by the ABCC/FWBC to people issued with one of the 203
defective notices was to contact one of them and tell them that the interview was not
going ahead.23
4.16 A number of prosecutions have proceeded on the basis of information or material
obtained by the ABCC/FWBC through the use of defective s 52 notices.24 The ABCC also conceded that evidence which has been obtained through the use of a defective s 52
notice has been subsequently admitted into evidence by a court in the course of a
prosecution.25

In February 2011 the ILO’s Committee of Experts said:
Noting with concern that the manner in which the ABCC carries out its activities seems to have led to the exclusion of workers in the building and construction
20 Senate Standing Committee on Education Employment and Workplace Relations Questions on Notice Budget Estimates 2011-2012 Question No.EW0117_12 http://www.aph.gov.au/Senate/committee/eet_ctte/estimates/bud_1112/answers/EW0117_12.pdf
21 Senate Standing Committee on Education Employment and Workplace Relations Questions on Notice Budget Estimates 2011-2012 Question No. EW0118_12 http://www.aph.gov.au/Senate/committee/eet_ctte/estimates/bud_1112/answers/EW0118_12.pdf
22 Senate Standing Committee on Education Employment and Workplace Relations Questions on Notice Budget Estimates 2011-2012 Question No.EW0119_12 – See attached at Appendix 2.
23 Ibid Question No.EW0124_12
24 Ibid Question No.EW0121_12
25 Ibid Question No EW0122_12
industry from the protection that the labour inspection system ought to secure for these workers under the applicable laws, the Committee urges the Government to ensure that the priorities of the ABCC (or the Fair Work Building Industry Inspectorate) are effectively reoriented so that labour inspectors in the building and construction industry may focus on their main functions in full conformity with Article 3(1) and (2) of the Convention.
4.17 By its own conduct the ABCC undermined any notion that it is independent and apolitical. It is now beyond any doubt that:-
(i) The ABCC/FWBC’s track record of investigations, advice, prosecutions and interventions clearly favoured employers;
(ii) Enforcement of employee rights such as wages and entitlements and freedom of association were consciously overlooked by the ABCC/FWBC even though they had a statutory responsibility to deal with them;
(iii) The ABCC/FWBC had no proper regard to the public interest in determining which matters to litigate and on whose behalf litigation should be brought; and
(iv) The ABCC/FWBC had been the subject of extensive criticism by superior courts and other tribunals both as to their investigative methods, choice of matters for prosecution and conduct of cases.


5 Health And Safety – Impact Of The ABCC and BCII Act

Occupational Health and Safety in the Construction Industry
5.1 The construction industry is a dangerous and arduous industry to work in. It is characterised by a system of sub-contracting, many small employers, widespread use of a ‘labour hire’ workforce and intense competitive pressures. These can contribute to corner-cutting on safety issues, breakdowns in the chain of responsibility and difficulties in maintaining effective employee representation on safety issues from job to job. Injury and fatality rates remain unacceptably high.
5.2 Various studies have pointed to the positive correlation between trade union involvement at workplaces and improved OHS outcomes.
Prohibition on Industrial Action – OHS Implications
5.6 The prohibition on ‘unlawful industrial action’26 in the BCII Act included – and reintroduced by the BCIIP Bill – not just commonly accepted instances of industrial action, such as strikes; it can include any situation where work is carried out ‘in a manner different from that in which it is customarily performed’27. It could also include certain occupational health and safety related disputes.

5.7 In an article focussing on the coercive powers within the BCII Act, Professor George Williams and Nicola McGarrity from the Gilbert and Tobin Centre of Public Law at the University of NSW highlighted the reach of the Act and the types of conduct that can be made unlawful by it.

“It would be within the ABC Commissioner’s investigatory powers to require any person who might have information about a strike, a slow-down or even a sick-day taken by an employee to provide information or documents or to give evidence under oath. For example, in May 2006, the ABCC issued a declaration that the actions of a CFMEU site representative and a CFMEU organiser had contravened the BCII Act. The action being investigated by the ABCC was a 20 minute meeting organised by the two men to collect money for the widow of a worker crushed to death on a building site.” 28

5.8 Under the previous BCII Act and the BCIIP Bill provisions, any departure from ordinary work practices as a result of an OH&S risk can expose those taking the action to a pecuniary penalty. Employees are therefore faced with the impossible dilemma of having to assess and balance an occupational health and safety issue against the prospect of large fines if they take building industrial action in response to any risk.

5.9 There is little doubt that had these laws applied many decades ago when the building unions mounted an industrial campaign to ban the use of asbestos, the unions and their members would have been exposed to significant fines for action that proved to be instrumental in outlawing this deadly product and saving many thousands of Australian lives.
26 (see ss. 38, 37 and 5 BCII Act)
27 (ss. 5 and 36)
28 (‘The Investigatory Powers of the ABCC’ (2008) 21 Australian Journal of Labour Law 246 at 273)

Role of ABCC
5.10 Whilst the ABCC/FWBC has played no direct role in the prosecution of OHS breaches in the industry, its prosecution record demonstrates scant regard for promoting the importance of OHS and compliance with OHS laws.
5.11 In the case of Cahill v. CFMEU and Mates the ABCC brought proceedings alleging that the union and an official had unlawfully coerced an employer to engage certain employees, including OHS officers, on a site in Heidelberg Victoria and had taken unlawful industrial action to prevent a crane company from working on the site.
5.12 The company whose interests the proceedings were brought to protect, Melbourne Transit Pty Ltd (Melbourne Transit), had previously been the subject of very strong criticism by the County Court of Victoria in relation to a workplace fatality of an employee in September 2004. The Court said: –
“I regard the defendant company’s actions before and after this accident to be reprehensible in the extreme, involving a dismissive and careless approach to the safety of its employees, such that a young life was cut short by what was clearly and easily avoidable accident… In my view the company was seriously at fault and its moral culpability was high.” (R v. Melbourne Transit Pty Ltd [2006] VCC 1037, 17 August 2006).
5.13 A fine of $10,000 was imposed on the company even though the Court acknowledged that as the company was in receivership, the fine would not be paid.
5.14 The ABCC appeared to have no regard for the public interest considerations that would ordinarily weigh against a public authority pursuing a prosecution for a company such as this, at great public expense. The fact that they chose to pursue such a matter sends a clear signal to the rest of the industry that occupational health and safety is of little or no concern to the ABCC.
5.15 The BCII Act and the ABCC emboldened employers to take an aggressive anti-union approach to union entry, presence and activities on site. The actions of the ABCC restricted union organisers from carrying out their historic role of detecting workplace hazards and agitating for rectification before accidents occur. Workers fearing prosecution or compulsory interrogation were less likely to raise issues of safety with their union representatives or their employer.

Wilcox Inquiry
On 31 March 2009 the final report of the Government inquiry into the construction industry was delivered to the Australian Government by Hon. Murray Wilcox Q.C. [the Wilcox Report].29 The Wilcox Report made a number of specific recommendations many of which are now reflected in the Fair Work (Building Industry) Act 2012.
In particular, it recommended that the special provisions relating to the definition of unlawful industrial action, additional penalty provisions and higher monetary penalties in the BCII Act, be repealed.
Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013

Industrial Action
6.3 This aspect of the Fair Work (Building Industry) Act 2012 was thoroughly dealt with during the Wilcox Consultation process. Three formal debates involving a range of interested parties were convened at the Law Schools of the Universities of Western Australia, Melbourne and Sydney. On each occasion employers were invited to tell the inquiry how, given the terms of the Fair Work Bill, they would be disadvantaged by having a single set of remedies and penalties available to them under those arrangements as opposed to the continuation of the BCII Act provisions. The Report concluded:-
‘Although there is clearly a technical difference between the circumstances under which industrial action is unlawful under the BCII Act …and the Fair Work Bill…I found it difficult to find a scenario under which this would make a practical difference. Accordingly, at each of the forums, I invited the help of the employers’ representatives who were present. They each undertook to consult with others and let me know if they could imagine such a scenario. None of them have done so. This confirms my view that the difference has no practical importance.’30
6.4 The Report also noted that under the Fair Work Bill, statutory compensation was available under both s 417 and s 421 (in combination with s 545).
Ultimately the Report concluded:-
‘..no reasoned case was put to me for retention of either of the first two differences in the rules applying to building workers, on the one hand, and the remainder of the workforce, on the other. I see no such case…..the retention of these differences would serve only to complicate the law.’31
29 http://www.workplace.gov.au/workplace/Publications/PolicyReviews/WilcoxConsultationProcess/ 30 Final Report paragraph 4.32.
31 Ibid paragraph 4.50.

Fines/Penalties
6.5 6.6 6.7
The issue of penalties was also analysed in some detail.
The separate penalty regime for the construction industry operated in a one-sided way
since it was introduced in 2005. The rationale for the different penalties was drawn from the Cole Royal Commission. However the Royal Commission also recommended that the maximum penalties for employers who breach awards and agreements by underpaying employees their lawful entitlements should be increased to the same level as those for industrial action. That recommendation was ignored by the Howard Government. The result has been that workers have been exposed to higher penalties but employers have not.

The Wilcox Report dealt with the argument that the industry is unique in its vulnerability to industrial action.
‘….it is necessary to remember there are many other industries in which industrial action may cause great loss to an employer, and even the national economy, and/or considerable public inconvenience. One has only to think of the major export industries, most components of the transport industry, the gas and electricity industries, the telecommunication industry and emergency services such as police. ambulances and hospitals. There is no less need to regulate industrial action in those industries than in the building and construction industry. Recognising the serious consequences of industrial action in virtually any industry, the Fair Work Bill proposes a number of severe constraints upon its occurrence.’32

The Report also noted that the Parliament had recently chosen what it regarded as the appropriate level of penalties in industrial matters and the Fair Work Bill embodied that decision. It concluded:-
‘I do not see how (the history of the building and construction industry) can justify ….the contravener.. …being subjected to a maximum penalty greater than would be faced by a person in another industry, who contravened the same provision and happened to be brought to justice. To do that would depart from the principle…of equality before the law.’33 (emphasis added)
The Wilcox Report disposed of the arguments about the need to retain additional penalty provisions from the BCII Act once and for all. It concluded that each of the provisions is comprehensively dealt with in the Fair Work Bill (now the Act) and that there was no need to carry any of them forward. We agree with that conclusion.
However the Report also recommended the continuation of different treatment for the industry in some key respects, most notably the retention of coercive powers, for a limited period, for use by this inspectorate during its investigations. The 2013 Bills retain the coercive powers and remove the safeguards introduced by the 2012 Act. These measures are strongly opposed.
paragraph 4.52. paragraph 4.63.
6.8
6.9
6.10
32 Ibid 33 Ibid

7 Coercive Powers
7.1 There is no good reason why there should be any differences between the regulatory arrangements that apply to the construction industry and those in other industries. As a matter of fundamental principle, and as a matter of fairness, the starting point for our lawmakers should be that Australian employees (and employers) be subject to the same national industrial laws
7.2 The industrial jurisdiction deals with matters that do not warrant the introduction 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. The public interest considerations that might weigh in favour of the use of coercive powers in these other areas are not present in the industrial context. To the contrary, the public interest very much favours keeping these powers out of the industrial arena to ensure that the exercise of industrial rights, like the right to associate, organise and take collective action is not tainted with the quasi-criminal overtones and general opprobrium reserved for these other matters.
7.3 It should also be kept in mind that the coercive the powers are not used to interrogate persons under suspicion of a crime but simply against any person who may be able to assist with an investigation.
7.4 The national industrial regulator, the FWO, has operated effectively without these kinds of coercive powers. They are simply not necessary for the enforcement of industrial laws.

ABCC – Location and Structure
7.5 The Wilcox Inquiry specifically considered the arguments about the structure and location of any specialist agency. Ultimately the Inquiry rejected the model which is now set out under the Fair Work (Building Industry) Act 2012, i.e. a separate and autonomous statutory agency working in parallel with, but independently of, the FWO.
7.6 Wilcox recommended that the proposed Specialist Division be located within the office of the FWO but with operational autonomy34.
7.7 The 2013 Bills should be withdrawn and replaced with legislation that abolishes the FWBC and transfers its operations into the office of the FWO with the same powers to conduct its investigations and prosecutions as the FWO.
Intervention
7.8 The Wilcox Report recommended against retaining a statutory right of intervention in court or FWC proceedings.35
34 Recommendation 1 Final Report page 6. 35 Paragraph 9.15 page 99.

‘In order to guard against the case being hijacked, it is better to give the court or FWA discretion to allow intervention. In that way terms may be imposed.’36
The current Bills do not reflect this conclusion.
7.9 The ABCC’s history in intervening in proceedings is a matter of public record. It was considered by Wilcox. Almost invariably the ABCC/FWBC has intervened to support (often well-resourced and experienced) employer litigants. There is no public interest in having a Government agency that simply avails itself of a statutory right of intervention to take a partisan position in the resolution of industrial disputes.
The 2013 Bills should be amended so that the issue of intervention by a regulator is left to the discretion of the relevant court or tribunal.

Definitions and Scope of the Bill
Meaning of ‘building work’
7.10 The definition of ‘building work’ in clause 6 of the Bill is of critical importance in defining the scope and application of the Bill including the scope of the proposed ABCC’s operations. The Bill intentionally extends the operation of its provisions beyond what applied under the BCII Act. It does this by extending the reach of its provisions to off-shore operations and by including the transport of supply of goods used in building work. The exclusion of the domestic housing sector, which was also a feature of the 2005 Act, has been retained.
7.11 The proposed definition will extend the real ambiguity and uncertainty as to the operation of these provisions and the field in which the ABCC is to operate. These problems of definitions and boundaries have been a feature of the legislation since the introduction of the 2005 Act. This problem is compounded by the differences in industrial rights between those covered by the proposed legislation and those who are not, which differences are created by this legislation.
7.12 As the ACTU submission points out, and notwithstanding the attempts to delineate the reach of the Bill in the Explanatory Memorandum, there will inevitably be ambiguity as to the application of the Act in respect of transport, storage and warehousing and even manufacturing operations as a result of these provisions and the unintended imposition of an entirely different and much harsher and more costly, industrial regime.

Industrial action
7.13 The CFMEU strongly opposes those clauses in the Bill that modify the rules relating to the taking of industrial action and other action in the building and construction industry. In particular Clause 8 of the Bill excludes from the concept of protected action as defined in the Fair Work Act, action engaged in concert with persons who are not protected persons, or where the organisers of the action include one or more such persons.

7.14 Clauses 47 and 48, introduce a new and unprecedented prohibition on persons (a wider concept than building industry participants) engaging in or organising ‘unlawful pickets’.

An unlawful picket is defined to include any action that is industrially motivated and directly restricts persons from accessing or leaving a building site.

Thus even action that is not unlawful at common law and action which is motivated by a perfectly lawful purpose can be caught by these provisions. These restrictions have potentially far-reaching consequences for fundamental democratic rights such as freedom of assembly and freedom of speech. These restrictions are of particular concern when coupled with the new reverse onus provisions in Clause 57 of the Bill.

Transitional and Consequential Provisions
7.15 The CFMEU strongly supports the ACTU submissions in relation to the effect of the transitional provisions associated with the main Bill. In particular we condemn the retrospective operation of Item 20 of the Bill which has the potential to open up matters which have been previously settled by parties on the basis of the law as it applied at the time such settlements were reached.

8. ILO Criticisms
8.1 The BCII Act was on no less than eight separate occasions, found by the ILO’s Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association to be contrary to core International Labour Conventions to which Australia is signatory.
8.2 As early as 2005 the Committee on Freedom of Association noted:

As for the penalty of six months’ imprisonment for failure to comply with a notice by the ABCC to produce documents or give information, the Committee recalls that penalties should be proportional to the gravity of the offence and requests the Government to consider amending this provision.

8.3 In February 2010 the Committee of Experts said:-
The Committee considers that the prosecution of workers does not constitute part of the primary duties of inspectors and may not only seriously interfere with the effective discharge of their primary duties – which should be centred on the protection of workers under Article 3 of the Convention – but also prejudice the authority and impartiality necessary in the relations between inspectors and employers and workers. This is even more so when the laws on the basis of which the workers are prosecuted have been repeatedly found by this Committee to be contrary to other international labour standards, notably Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
8.4 In February 2011 the Committee reiterated its previous conclusions:-

Noting with concern that the manner in which the ABCC carries out its activities seems to have led to the exclusion of workers in the building and construction industry from the protection that the labour inspection system ought to secure for these workers under the applicable laws, the Committee urges the Government to ensure that the priorities of the ABCC (or the Fair Work Building Industry Inspectorate) are effectively reoriented so that labour inspectors in the building and construction industry may focus on their main functions in full conformity with Article 3(1) and (2) of the Convention.
8.5 It is important to have regard to international obligations that have been voluntarily assumed in deciding the fate of the new laws. A reversion to the provisions of the BCII Act will inevitably bring Australia back into conflict with the most fundamental of internationally accepted labour standards.

9 Conclusion

9.1 If the 2013 Bills are approved in their current form the coercive powers would continue to exist and the penalty for failure to comply with these powers would remain six months imprisonment. Whilst such laws continue to exist, the spectre of criminal penalties hangs over people working in this industry. These coercive powers have no place in the industrial jurisdiction.

9.2 The proposed separate and industry-specific labour inspectorate, armed with these intrusive and unprecedented coercive powers, represents the continuation of flawed policy. The ABCC/FWBC has politicised the enforcement aspect of industrial relations and abandoned the fundamental purpose for which labour inspectorates are established – the protection and enforcement of workers’ rights in the workplace. Vast amounts of public resources have been and continue to be used to support employers in industrial disputes.

9.3 The BCII Act represented the last and most extreme vestige of the WorkChoices era. The 2013 Bills are a continuation of that approach. Future arrangements for the industry must be consistent with binding international labour standards and must also promote the fundamental principle of equality before the law. Since the proposed Bills are inconsistent with these concepts, the Committee should recommend the rejection of the Bills.

For my past posts put ABCC in search.
A 2008 article http://chriswhiteonline.org/2008/09/workers-rights/

First the verdict: on the Cole Commission http://chriswhiteonline.org/2008/09/first-the-verdict-the-true-story-of-the-cole-commission-into-building-and-construction-workers-2003/

My first 2005 submission http://chriswhiteonline.org/2008/08/provoking-construction-and-building-workers/

From the WA branch of the CFMEU

Advance Australia Unfair?

Did you know? If 9/11 happened in Australia and a major building had to be re-built from the ashes, the construction workers who would do the job would be subjected on-site to the same laws as the terrorists who caused the destruction in the first place!

Is this a fair go for construction workers and their families?

• No-one called for interrogation by the Australian Building and Construction Commission (ABCC) has the right to silence. You are forced to answer their questions or face up to 6 months in jail.
• They can come to get you at your home, workplace, or on the street any time day or night.
• Refusal to attend may result in 6 months jail.
• The interrogations are secret.
• You can talk to no-one, except a lawyer about what happened to you – you can’t even discuss it with your partner, best mate, Brother and Sister, Mum or Dad. No-one- or you can be subject to jail.
• You may not be able to choose your own Lawyer.

The laws brought in by the Howard government and now being re-introduced by Tony Abbott against construction workers were formed out of the new laws that were legislated to protect Australia from terrorists after 9/11.

These insidious, laws and powers do not apply to anyone else in the Australian public. Yet! They could always be twisted and let loose on other segments of Australian society.

The laws have been condemned by the United Nations’ International Labor Organization (I.L.O.) as archaic and against the principles of freedom and democracy and an atrocity against human rights for Australian workers.

Fact: No where else in the ‘Western World’ do laws like these exist, they exist only in Australia. As a result, serial killers, drunk-driving murderers, child rapists and armed robbers have far more legal rights than the average construction worker. When you ask the average person in the street if they are aware about these draconian laws they don’t have a clue and this what the Abbott government is banking on.

Their view is; what the wider Australia public doesn’t know won’t hurt them. The Liberals don’t see these laws as a vote loser! Just wait until the next election! The Abbott government is happy to stealthily target and viciously apply these oppressive laws to the construction workforce- they hold it up as some trophy to prove they are tough against unions and they see construction unions as an easy target.

In no other workplace outside of the construction industry does a worker have to tell what went on at a work related meeting. Let alone be subject to a jail sentence.

A Howard found out, when you unfairly target workers, cut their rights, wages and conditions, you lose!

What Abbot and the Liberals fail to understand is that the fight to get rid of the powers is not about them. It’s about freedom, equal rights and having one fair law for all under the Australian flag.

CFMEU WA

And they want building workers to work until 70.
http://workinglife.org.au/2013/11/22/how-do-you-feel-about-working-to-70/

And Worse than WorkChoices in Queensland http://workinglife.org.au/2013/11/18/worse-than-workchoices-youd-better-believe-it/

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2 Responses to ACTU and CFMEU on Abetz’s new attack on building unions: the ABCC returns

  1. rob mitchell November 28, 2013 at 9:58 pm #

    A good article Chris . You forgot to mention how safety and deaths increased under the watch of Howards version of the ABCC.

  2. Dean Mighell November 29, 2013 at 12:56 am #

    This is a good read about a continued attack on building workers and their unions. Yes, it seems the Libs want to make them worse however, how can we excuse the Rudd and Gillard Governments for refusing to abolish the ABCC and why did the ACTU not demand its removal?

    It’s time unions acted independently, grew a set and refuse to back any political party that doesnt back workers rights. Only then will we learn to stand on our feet again and demand better for our members. Im sure the ALP will be saying all the right things when in opposition, they always do. Where were they when they had the chance to abolish these disgraceful laws?