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Issue # 1416      24 June 2009

ABCC: Laying bare Labor’s pro-employer position

“This bill is a specifically targeted legislative measure to address the unlawful conduct of unions”, former Workplace Relations Minister Kevin Andrews told Parliament in his second reading speech on March 9, 2005. He was speaking in support of the Building and Construction Industry Improvement Bill 2005 (BCII Bill), the most draconian and repressive of the Howard government’s anti-union laws. The BCII Act established the notorious secretive building industry police force, the Australian Building and Construction Commission (ABCC), with its unprecedented coercive interrogatory powers and punitive provisions, including jail sentences for workers.

“I am … disappointed that there are still pockets of the industry where people think they are above the law, where people engage in intimidation and violence,” said the current Workplace Relations Minister Julia Gillard last week in her second reading speech on changes to the BCII Act. The Rudd Labor government is not repealing the BCII Act but amending it. Labor is not abolishing the ABCC but transferring it to its Fair Work Australia umbrella with a few modifications.

Gillard echoed the Coalition’s anti-union sentiments and targeting of unions, repeating earlier threats “to keep a strong cop on the beat for the benefit of the industry and the economy”. The benefit to industry is higher profits. It is not for the benefit of workers. No mention is made of the need to protect their health and safety or democratic rights.

Gillard’s speech laid bare her pro-employer outlook and the total contempt she holds for militant unions defending the lives, wages, working conditions and other entitlements of workers in one of the one of the most dangerous industries in Australia. The original BCII Act did nothing to address the 50 or more deaths and thousands of serious injuries on building sites every year. Nor does Gillard’s Transition to Fair Work Bill.

Coercive interrogatory powers

The ABCC was given unprecedented coercive powers to interrogate innocent workers and union officials. Failure to turn up for an interrogation session or refusal to inform on fellow workers and repeat what they said at a union meeting carries an obligatory six-month jail sentence. The interrogation might be a hundred or more kilometres from where the worker lives, but the worker must pay all costs, including for loss of work, to attend.

Under the BCII Act building workers and union officials face individual fines of $28,600 a day, unions $110,000 a day as well as millions of dollars of uncapped damages claims from employers for “unlawful” conduct. Even in the case of action to protect health and safety they face the threat of these penalties.

Basic, internationally recognised legal norms were overturned such as the right to remain silent and right to a lawyer of your own choosing. The onus of proof was turned on its head, the compulsory interrogations were secret and the warrants not issued by a court but by the ABCC itself. The Act denied innocent building workers and union officials who might know something the basic democratic rights that are afforded those accused of serious crimes or acts of terror.

Attack on building unions

“It is a bill with one objective: to erode the hard-won rights of building construction workers and, in some instances, to hand back exclusive unfettered power to a small number of ruthless employers who have no regard to the health and safety, and wages and conditions of their employees,” Labor MP and former ACTU president Martin Ferguson said during the debate on the bill in 2005.

“I suggest to the House that this government has never been about cleaning up the building industry. Its real goal has been, and always will be, to smash the union movement and hand power back to employers who have no regard for the welfare of building workers and their families,” he said pointing to the objectives of the bill.

At the time, Labor MPs opposed the concept of a separate industrial relations jurisdiction for a specific industry. Labor Senator Penny Wong, now a minister, said, “It is far better to have a sensible regulatory system across a number of industries.”

Transfer not abolition

The Rudd Labor government’s Transition to Fair Work Bill, if passed, will transfer the ABCC and most of the draconian provisions of the old Act to its new Fair Work Australia umbrella.

From February 1, 2010, the ABBC will become the Office of the Fair Work Building Industry Inspectorate and the ABCC Commissioner will be renamed as its Director. Compulsory interrogations are now called “examinations”! The process of compulsory interrogations has been modified to provide some “safeguards”:

  • The Director will have to apply to a presidential member of the Administrative Appeals Tribunal for an examination notice to be issued before interrogation can proceed.
  • Interrogations will be recorded and a copy of them and other investigatory materials will be sent to the Commonwealth Ombudsman who will review the activities of the Director following an investigation.
  • Building workers will now have the right to a lawyer of their own choice at interrogations and will not be bound to secrecy following the interrogation.
  • Building workers may apply to have their costs in attending an examination refunded.
  • Building workers will be subjected to the same (lower) fines as other workers for breaches of the Fair Work Act.
  • The court will have the option of fining as well as or instead of jailing a worker who fails to attend an interrogation or answer questions.

Senator Wong had proposed this as an amendment to the original Bill in 2005, saying “imprisonment has the potential to make a martyr of the person who deifies a warrant. It may be that in some cases a high financial penalty is more of a burden on an individual than simply a short term of imprisonment.” The Howard government knocked it back. The Rudd government is running with it now.

Worst features remain

These so-called safeguards leave intact the key provisions and intent of the Howard legislation:

  • The right to strike or take any other form of action remains unlawful and subject to fines and multi-million dollar damages actions. The right of entry remains severely restricted, inhibiting unions from carrying out their functions.
  • The amendments still target one group of workers and their unions for harsher treatment and denial of rights. The ABCC’s record confirms that it is not interested in nor intended to address the unlawful behaviour of employers.
  • The coercive interrogation process remains intact. Minister Gillard said last week, “It is understandable that workers in the building industry resent being subject to an interrogation process that does not apply to other workers, designed to extract from them information for use in penalty proceedings against their workmates and/or union.… I am satisfied there is still such a level of industrial unlawfulness in the building and construction industry, especially in Victoria and Western Australia, that it would be inadvisable not to empower the [Director of the Building Inspectorate] to undertake compulsory interrogation. The reality is that, without such a power, some types of contravention would be almost impossible to prove.”

The Minister stands condemned by her own words: “information for use in penalty proceedings against their workmates and/or union” and “without such a power, some types of contravention would be almost impossible to prove”. It needs to be repeated, the alleged “unlawful” conduct is legitimate trade union activity. The target remains the unions.

  • The amendments are even more divisive than the old Act, making provision for the “coercive interrogation powers” – to use the minister’s own words – to be “switched off” in relation to a specific project. They would be turned back on in the event of “industrial unlawfulness” – meaning industrial action by workers and their trade unions.

“These arrangements provide the industry with the opportunity to demonstrate that the requisite lawful culture is in place and the opportunity for the law-abiding majority to not be tarred with the same brush as the unlawful rogue elements,” Gillard said, echoing the very language used by the Liberal-National Coalition.

  • The process of gaining an examination notice is flawed. The Director does not have to justify the nature of the investigation, only that someone might be able to assist with information being sought. The Building Inspectorate will be able to continue its snooping and intimidatory activities.

Act now

Within Labor ranks there is strong opposition to the Rudd/Gillard legislation. A few MPs have had the courage to speak out against the bill. They must now be given the support and have the courage to vote it down. It is important that as many unions and their members and other organisations and individuals write to their MPs and Senators, calling on them to oppose the legislation.

Ask them which side they are on. Are they prepared to stand up and be counted? If they are, they will have the full support of the trade union movement and community at large.

Time is running out. The Labor government is attempting to rush through the legislation before the ALP national conference at the end of July.

Write also to the Australian Greens Senators, indicating your support for their principled stand against the legislation. This bill must be defeated.

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