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Issue #1458      9 June 2010

Trade union rights on trial



Workers’ rights will be on trial in Adelaide on June 15 as the magistrate’s court begins hearing charges against construction worker Ark Tribe. “This fight isn’t about me or you, it’s about us and the kids who come behind us. I never thought I’d see the day when hard working Australians would face jail for sticking up for their rights,” said Ark. The construction worker, a member of the Construction, Forestry, Mining and Energy Union (CFMEU) has been charged with refusing to attend an interview with the Australian Building and Construction Commission (ABCC).

Ark Tribe with his son marching in Sydney on May Day this year. (Photo: Anna Pha)

If found guilty Ark faces up to six months in jail. The crime? Refusing to attend an interrogation session and tell the ABCC what his workmates said at a safety meeting.

“On the June 15 he’ll begin fighting to clear his name – while at the same time taking a stand against an unjust set of laws that target all of us,” said a statement by the CFMEU.

“If Ark is sent to jail we will begin immediate industrial action across this country – because as long as these unjust laws are used to threaten and intimidate construction workers like Ark, this union will stand beside them and fight.”

In Queensland, a well-attended meeting of the Building Trades Group of unions pledged to fight the unjust industrial laws and resolved to take immediate industrial action across Queensland if Ark is jailed. The motion had the support of all building unions, from the political right and left, including the Builders Labourers Federation, the Australian Workers Union, the Australian Manufacturing Workers Union, Electrical Trade Union, and the Plumbers (CEPU) union.

As the hearing begins there will be rallies in Adelaide, Sydney, Tasmania, and Melbourne. In addition, construction workers from WA, Queensland and the ACT will be travelling to Adelaide to support Ark.

Safety breaches

The ABCC began pursuing Ark 18 months ago, following a dispute over safety breaches at the Flinders University site where he worked. The union called in Safework SA which issued prohibition notices and the company was then forced to address these issues. Ark had signed a petition and voiced his concern over growing safety issues on site.

After the dispute was over, when conditions were safer, only then did the ABCC make its appearance. Instead of tackling the employer over breaches of the law, it set about an inquisition of union members on the site. This is classic ABCC behaviour.

Under the federal government’s industrial relations laws, construction workers like Ark can be fined up to $22,000 each for stopping work as well as be jailed for up to six months for failing to comply with the ABCC’s demands.

Industry police force

The ABCC was set up by the Howard government under the dishonestly named Building Construction Industry Improvement Act 2005 (BCII Act). It is a highly political, industry specific police force directed against trade unions and militant workers in the industry. The Act seeks to keep trade unions off building sites and criminalise industrial action by building workers.

Its officers can be seen snooping around major construction sites, summonsing innocent workers to secret interrogation sessions and then laying charges if they fail to comply. If an employer calls the ABCC to remove a trade union official from a workplace, it responds with incredible speed. ABCC officers have been seen running around building sites pulling down Eureka flags and removing union stickers and posters – all in the name of countering “lawlessness” in the industry.

At the same time they turn a blind eye to the criminal acts of employers that cost lives and see thousands of workers injured every year. Employers are able to act with impunity, knowing that if the union steps in when occupational health and safety laws are breached or workers are underpaid or cheated of their entitlements, they will have the protection of the ABCC.

“With its coercive powers and ideological targeting of construction workers, the ABCC plays a political game rather than a useful or meaningful role in the industry,” CFMEU Construction & General Division national secretary Dave Noonan said. The union is calling for the abolition of the ABCC.

“The fact that an ordinary building worker is currently being dragged through the courts like a common criminal shows clearly why the ABCC must go. Ark Tribe is accused of nothing more than attending a meeting about safety issues on site. By standing tall and not dobbing on his mates, he now faces the real prospect of imprisonment,” Dave Noonan said.

Dirty work for bosses

The ABCC cannot be accused of being idle. More than 150 people have been dragged in for interviews. To date the courts have imposed $2,094,900 in penalties ($706,800 suspended depending on behaviour), in successful ABCC cases.

It spends millions of dollars taking action to keep elected union officials off work sites, away from their members, and court actions aimed at bankrupting building and construction unions.

The ABCC seems to have a bottomless pocket as it pursues trade unions and workers in the courts – at an average of around $1 million for each case. The 2010-11 federal budget allocates the ABCC $34 billion to continue its dirty work for building companies.

The ABCC has failed to prosecute even one employer for ripping off construction workers’ wages and entitlements, despite having the responsibility to do so.

Employers have gone on the offensive making the most of the ABCC and accompanying legislation to shut trade unions out of workplaces, rob workers of their legal entitlements and take short cuts on health and safety. As a consequence building sites have become more dangerous under its watch.

Workplace deaths on rise

When the ABCC began its attack on unions the number of building site fatalities rose from 19 per annum in 2004-05 to 37 in 2006-07. On average 50 construction workers are now killed each year from work related incidents and illnesses.

Howard lives on

The BCII Act 2005 was one of the most pernicious pieces of Howard legislation. Its provisions and Labor’s subsequent amendments have been condemned seven times by the International Labour Organisation.

Howard’s Workplace Relations Minister Kevin Andrews, in supporting the bill in 2005, said it “seeks to implement a framework where unlawful industrial action is not tolerated and those taking such action are brought to account for their lawlessness.

In addition to fines of $22,000 for workers and $110,00 for unions, “parties who take unlawful action may be ordered by a court to pay substantial uncapped compensation to any person affected by the unlawful industrial action,” Andrews proudly announced.

“Unlawful action” is defined as industrial action, right of entry, activities related to membership recruitment and the exercise of other basic, internationally recognised trade union rights.

In 2005, the Labor Party strongly opposed the bill. Senator Penny Wong, now a minister in the Rudd government, said in opposition to the bill that it “places further restrictions upon employees and their unions from exercising their right to strike, which brings Australia into further breach of the relevant International Labour Organisation convention.”

“… we do not support the denial of civil liberties to innocent Australians simply because they work in the building industry and simply because this government wants to target these workers,” Wong said. “Criminal matters ought to be investigated by the police.”

Greg Combet, now a member of the Rudd government, strongly opposed the legislation when addressing the 2006 ACTU Congress as its president: “We are fighting for the future of our democracy, we are fighting for the future of our kids, we are fighting for a fair and just Australian society…

“We will not be intimidated by the Howard government, or their friends in the business community. And we will fight until we win. We will see these laws repealed.”

“We are clear about our values, and what we stand for. Our values define who we are and what we are fighting for,” Combet declared.

The Howard government was thrown out with high expectations in the trade union movement that the new Labor government would honour its promises to abolish the ABCC.

When moving legislation in 2009 to retain the ABCC by another name within the framework of Fair Work Australia, Labor’s Workplace Relations Minister Julia Gillard echoed Andrews’ attack on building unions. She spoke about a “culture of unlawful behaviour”, “the need to drive cultural change”, “industrial unlawfulness”, and accused some unionists of engaging in “intimidation and violence”.

“… it meets our election promise to keep a strong cop on the beat for the benefit of the industry and the economy,” Gillard said.

Labor’s amendments to the ABCC tinker at the edges. They retain most of its repressive, anti-worker, anti-union features, including:

  • the targeting of workers and unions in a specific industry
  • the outlawing of industrial action with heavy fines and the threat to individual workers and trade unions and their officials of multi-million dollar uncapped damage claims by employers
  • the right of entry restricted, inhibiting unions from carrying out their functions
  • the coercive interrogation process – compulsory attendance at interrogation sessions, now quaintly called “examinations” with the threat of six months’ jail for non-compliance
  • denial of the basic right to remain silent during interrogation.

(For more details of Rudd/Gillard amendments see Guardian June 24, 2009.)

Abolish the ABCC

It is important that as many people as possible take part in the actions on June 15 to pressure the government and build support for Ark Tribe and the abolition of the ABCC. Readers can lobby their MPs, publicise the action and Ark Tribe’s case through various media outlets and social networks.

Building workers and their unions are still clear about their values, and what they stand for. They deserve our full support. As Combet said: “Our values define who we are and what we are fighting for.” This is a fight for trade union rights, a fight for democratic rights.

In the upcoming federal elections, readers are urged to support parties and independent candidates who will fight for trade union rights and the repeal of the ABCC legislation such as the Communist Alliance and the Australian Greens.


Rally supporting Ark going to court. Starting at the “Ark Tribe Embassy”, Victoria Square, Adelaide at 8:15am.

March of Solidarity 12pm, corner of Goulburn St
and Dixon Lane.

Parliament House 12pm.

Tent Embassy, ABCC Headquarters, 533 St. Kilda Rd, Melbourne.  

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