define('DISABLE_WP_CRON', true); Rudd’s Secret Industrial Inquisition | Chris White Online

Rudd’s Secret Industrial Inquisition

Howard’s blandly named Australian Building and Construction Commission, the ABCC remains under Rudd. I re-wote an earlier film review when I heard that in august 2008 the ABCC, under PM Rudd and Minister Gillard, is prosecuting Victorian CFMEU Noel Washington who faces 6 months jail for not answering questions about a union meeting.

One way to understand the background is to see Joe Loh’s documentary ˜Constructing Fear” that exposes the ABCC as Australia’s Star Chamber. It gives an insight into who frightens building workers. The human impact of Howard’s repression of strikes is shown on working families. The DVD explains why building workers stood up for their right to strike. These construction workers are those in the Liberals’ election TV ads: WA CFMEU Joe McDonald is interviewed.

I ain’t no slave!

One dispute the DVD looks at began on the 29th August 2006, when the ABCC began an unparalleled prosecution of 107 Perth building workers for striking in protest against the unfair dismissal of their shop steward.

The giant corporation Leighton-Kumagai Joint Venture, LKJV was constructing a $1.6 billion railway project under Perth. Workers worked 56 hours plus disputed overtime. Many grievances and OHS issues troubled the Project, with traditional ˜blues™ in response. CFMEU delegate Peters: ˜It’s like World War Two. The guys are shell-shocked but they are standing together. It’s been a non-stop campaign of intimidation. One safety rep went away on holiday and found he had been replaced when he got back. A tunneler who raised a safety issue was moved out of the tunnel to the far end of the job.”

Management provoked a strike. Workers walked off the job over the final straw “ the unfair sacking of their shop steward Peter Ballard. After democratic discussion and despite CFMEU official Joe McDonald warning of the ABCC, workers withdrew their labour. Workers decided to stand up for the right to strike. They sweated under the threat of individual fines of up to $28,600 for so-called ˜unlawful industrial action”.

Months after the dispute was settled the ABCC delivered writs to homes: ˜These writs, and the threats to people’s homes, are the government’s doing. On annual leave, Peters toured interstate condemning the prosecutions. He was sacked on his return for ˜operational reasons”.

The film shows shattered workers and their wives. Father of four John Pes said he was having difficulty paying bills without a fine to add to his troubles. He had no regrets about the strike action and had done what he believed was right. ˜At the end of the day, your beliefs are what you have. Some things that you do have consequences and we just have to fight on. Lock me up. I won’t pay fines for striking.™

Unionist Charlie Isaac proudly asserts: ˜I ain’t no slave. The only thing I had to offer Leightons, what they wanted from me, was my labour. If they weren’t going to listen to me, the only thing I could take from them that they wanted, was my labour. So I withdrew my labour which I thought in a democratic society you would be able to do.™

The film covers other legitimate disputes, with Charlie Corbett prosecuted and facing fines for a three-day over-time ban to get jobs for two local apprentices.

˜These members are at the forefront of the most punitive set of IR laws anywhere in the democratic world’
ACTU President Burrow.
(See The Australian Institute of Employment Rights published ˜The Perth 107

Workers waited anxiously for over two years for the outcome of their trial for striking. On 20 December, the Federal Court ruled on the penalties with some individuals fined $10,000 each, with $6750 suspended for six months, conditional on good behaviour and others lesser fines of $9000 and $8,400, with $5600 suspended. The judge noted that the union Fighting Fund would meet the costs. What is the background?

Senate Power: first move against ˜militant’ unions

On the first day after winning Senate control, (before Workchoices) Howard rushed through his anti-union agenda, targeting first (most unfairly) the building and construction unionists with the Building and Construction Industry Improvement Act 2005 (BCII Act, ˜improvement™ only for the employers).

The BCII makes union strikes that were formerly legitimate now ˜unlawful™. A new offence of ˜unlawful industrial action’ prohibits a worker or union from strike action. Fines are $110,000 for unions and $22,600 for individuals. Formerly, strikes were settled by union negotiation or by the AIRC, the industrial umpire.

The BCII is enforced by the ABCC. Workers withdrawing their labour are subject to secret inquisitions into union disputes. ABCC lawyers apply for penal sanctions.

Minister Andrews said he was˜clarifying the regulation of industrial action’. But this disingenuous ˜spin™ hides his politically motivated legal strategy to suppress the few building union strikes. From 1981-2002, 99.76% of total working time was devoted to work, not striking. Under WorkChoices strikes are even lower. No ˜endemic lawlessness’ occurs. Targeting building industry disputes with heftier fines is in stark contrast with reality. This removal of a worker’s right to strike is a breach of basic human rights that Australia is supposed to uphold in a democracy.

Lawyers as attack dogs

Howard failed to destroy the MUA during the 1998 Waterfront attack. This time, he devised a legal attack strategy instead of a direct confrontation with unions. ˜Instead of dogs and balaclavas, this time they are going to do it with wigs and gowns’ says Tony Kucera, CFMEU lawyer.

In order to understand the building legislation, we go back to 2003 when Howard concocted the Cole Royal Commission (costing $64 million!) for political reasons to provide a cloak of legitimacy to union busting. He found ˜inappropriate union behaviour” such as short stoppages over poor site working conditions, minor union infringements of the right of entry and industry bargaining that he was opposed to but had existed for over 100 years.

Cole’s logic was like ˜doublethink’ in Orwell’s 1984.

Behaviour which is not ˜unlawful’, or to be more specific, which is lawful, can be deemed ˜inappropriate’. Legislative changes can be recommended which will transform that which is ˜inappropriate’ into that which is ˜unlawful’. Through Cole’s interplay of ˜unlawful’ and ˜inappropriate’, the vice of doublethink is played out. That which is lawful is unlawful.

Cole found little ˜inappropriate employer behaviour” ignoring evidence of global construction corporations and contractors not paying workers’ legal entitlements, evading tax and breaching OHS standards. Cole failed to consider the collaborative IR model that built the Sydney Olympic Games with government, unions and employers working together for world-class environmental outcomes. So as a result of Cole, then Minister Abbott first introduced the draconian legislation. But that was defeated in the Senate and not brought back until 2005 when Howard had control.

The BCII prohibits all industrial action during an agreement. Employers can make changes adverse to workers during the term of the agreement, but it is illegal for unions to respond with industrial action.

Construction Project Agreements negotiated by project managers, contractors and unions provide practical guidelines, stability and protect workers entitlements. The BCII makes them unenforceable.

An organiser must not ask the contractor to employ, as was the accepted practice, an experienced union delegate as a union OHS delegate to enforce safety. Employers are not to be pressured to make superannuation payments to a particular fund.

Double the repression: BCII and WorkChoices

WorkChoices in 2006 gave more penal powers for corporate interests to severely limit the lawful strike (see No 56, 66; and ˜The right to strike removed™ Dissent, No. 21 Spring 2006).

WorkChoices outlaws union pattern or industry bargaining strikes. This denies industrial relations reality, as there is always a mixture of enterprise and industry bargaining. Building industry bargaining contributed more to productivity than individual bargaining.

Under WorkChoices the limited right to strike is even more severely constrained by complex compulsory ballots. Employers retain their legal right to lockout with no ballot requirement; the most unbalanced scheme in the OECD world.

Lawful strike action can lose its protection, with the AIRC terminating the lawful strike. A new penal power compels the AIRC to halt any strike that is not protected.

Building corporations in new projects use the controversial WorkChoices provision for ˜greenfield employer agreements”, where, unbelievably, employers fix wages themselves, not with workers and unions. Union right of entry is severely restricted.

WorkChoices deleted the limited immunity against the ancient doctrines of common law of tort that makes a strike illegal and the union subject to crippling damages, e.g. $6.48 million against the Pilots. Kumagai-Leighton has a common law action against the CFMEU for damages.

The right to strike, as a human right, should not be prohibited.

Enforcement the ABCC way: Trashing civil liberties

One reason Howard established the ABCC was because employers were reluctant to prosecute their workers after the dispute was settled by agreement. The ABCC prosecutes instead of the employer.

The ABCC under Ministerial control with an annual budget of $55 million and over 120 ˜Inspectors” from policing agencies is a unique form of political executive power.

The ABCC uses draconian coercive powers to interrogate workers and union officials. During an investigation, ˜Inspectors” threaten a penalty of imprisonment for 6 months against any individual summonsed to attend for questioning who does not answer questions or fails to hand over documents. Workers cannot choose their own lawyer. It is an offence to speak about what happened in the interrogation.

The BCII removes the common law privilege against self-incrimination and the right to silence, a critical legal right. Building workers need to have done nothing wrong to be subject to a tirade of hours of questioning, with no rules of evidence. Workers involved in union stop-work meetings face a harsh choice: answer the ABCC questions or face six months jail! Noel Washington is under such threat. Murderers are not denied the right to silence.

The BCII spends millions on lawyers.
The combined impact of large fines and costs are very heavy-handed sanctions against strike action.

The ABCC operates without any industrial fair play. The International Labour Organisation, ILO, in 2005 said the BCII Act breached internationally accepted tri-partite labour standards. It had no safeguards against interference in union activities; the ABCC can interrogate any person, in the absence of any suspected breach of the law; there is no appeal; penalties are not proportional to the offence committed; serious sanctions can be incurred and the protection of the right to strike is contravened.

ABCC Inspectors coercive powers go further than the police and ASIO. ALP and Green MPs argued that building workers have ˜rights™ inferior to the limited rights for suspected terrorists. This has no counterpart in the democratic world.

The CFMEU warned in newspaper ads: ˜In what country can you be interrogated about a routine union meeting, and jailed if you don’t comply?™

This denial of civil liberties is an excess of State power against the individual worker or union official. This is an abuse of the rule of law, restricts political expression and is another example of Howard’s Police State. The CFMEU poster from the Union Ballad of 1891 is ˜When they jail a man for striking, it’s a rich man’s country yet.™

Safety compromised

In an industry with 50 deaths each year, the priority for the safety and lives of workers should prevail over profits. OHS lawful strikes are now more risky. Brodene Wardley OHS Delegate and Safety Rep of the Year was ˜belittled” by the ABCC over a legitimate safety concern and tells her story in ˜Constructing Fear.”

The best enforcers of OHS standards, the union worker safety reps trained for prevention and compliance, but union training schemes and paid OHS union training leave are prohibited.

No right to strike over global warming

The BCII outlaws socially responsible union campaigns, such as the world-leading environmental green bans and campaigns on global warming. With community support, green bans to save the environment are supported for socially responsible building development. Socially responsible strikes allow unions to substitute a social decision for a market determination.

Unionists attending political protests against global warming are an important civic freedom of political communication in a democracy. (˜The Right to Strike to Save the Environment’

The ILO says the political protest strike is legitimate. (˜The Right to Politically Strike?™ AIRAANZ 2005 Sydney University,

Police State

US Republican President Eisenhower warned.
˜The right of workers to leave their jobs is a test of freedom. Hitler suppressed strikes. Stalin suppressed strikes. But each also suppressed freedom. There are some things worse than strikes, much worse than strikes “ one of them is the loss of freedom.™ cited by Whitlam’s Labor Minister Clyde Cameron (1970).

As Cameron concluded: ˜Eisenhower was correct in pointing out that the hallmark of the Police State is the loss of the right to strike.
A worker’s right to strike is surely a basic human right. The right to withdraw labour is the one thing that distinguishes a free worker from the slave. This is a fundamental freedom.™

Workers in the ˜Your Rights at Work” campaign are angry that Kevin Rudd, despite ALP MPs forcefully opposing the BCII, keeps the ABCC until 2010.

Australian workers deserve a right to strike, without penalties. I criticised Rudd’s other unfair restrictions on legitimate industrial action in ˜What limits the right to strike?”

It is a worrying sign of the times that ˜Constructing Fear’ is not shown on TV. And that Noel Washington faces six months jail under a Rudd labour government.

Chris White lives in Canberra and researches labour law.


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