- by Anna Pha
- The Guardian
- Issue #2011
Photo: Anna Pha
The Australian Building and Construction Commission (ABCC) has used the courts to hit building and construction unions with fines of $15.262 million since 2nd December 2016, including more than $2 million in the past eleven months.
The ABCC’s main target throughout those years and still today is the construction division of the CFMMEU (CFMEU). The penalties have been imposed for alleged breaches of right of entry, freedom of association, unlawful industrial action, coercion, and strike pay laws – bad laws denying trade unions and workers basic democratic rights of association, to organise and to collectively bargain.
The Labor Party has made a commitment to abolish the ABCC. As it is a statutory body, this will require legislation to be passed in both houses of parliament. In the House of Representatives where Labor has a clear majority this should not be a problem. In the Senate it can expect Greens’ support but needs two additional Senators – possibly the independents David Pocock and Jacqui Lambie.
The ABCC first came into operation in 2005 under an Act passed by the Howard Coalition government as part of a wave of union-busting, anti-worker laws, including the destructive WorkChoices Act. The latter introducing individual work contracts amongst other provisions.
It is a political weapon to rid construction sites of militant trade unions by bankrupting them with massive penalties and legal costs; intimidating unions and workers; and by protecting unscrupulous employers who run roughshod over labour laws.
In line with its anti-worker bias, employers have only been fined just over $150,000 in the past eleven months.
The ABCC bill in many respects mirrored the anti-terrorism legislation at the time, giving the ABCC draconian powers that denied workers, trade union officials, and trade unions important democratic rights.
- Workers not having the right to silence, a fundamental right in current legal norms;
- Facing penalties of up to six months jail if they refused to answer questions about something as simple as who attended a union meeting or what they said;
- Not having the right to a lawyer of their choosing;
- Retrospective application of the law.
The penalties ran into tens or even hundreds of thousands of dollars for legitimate trade union activities protecting members’ interests and workplace health and safety. The legislation purported to be “fair”, protecting the rights of employers and workers but the outcomes tell another story.
Employers were rarely investigated, let alone taken to court for non-payment of workers’ entitlements or safety breaches. It was up to the unions to chase up unpaid wages, superannuation and other entitlements while risking heavy penalties. The CFMEU is constantly pursuing employers who wilfully breach the law and know that if workers take action to enforce their rights or to ensure safety is maintained, they will be fined for “unlawful” action.
Labor was elected in 2007 promising to tear up the ABCC legislation. When promising to abolish the Australian Building and Construction Commission, Deputy Prime Minister and Workplace Relations Minister Julia Gillard told the ABC’s Leigh Sales that there would still be “a tough cop on the beat with coercive powers to crack down on any bad behaviour.” (ABC Lateline 26-06-2009). Labor’s Office of the Fair Work Building Industry Inspectorate – commonly referred to as the Fair Work Build and Construction (FWBC) – that replaced the ABCC in 2012 proved to be just that – a “tough cop on the beat”.
The ABCC was not “abolished” as expected, but rather underwent some modifications and was incorporated in the new Fair Work Act as the Fair Work Building and Construction (FWBC) with penalties reduced bringing them into line with other industries.
The penalties might have been reduced and some of the processes changed but the new FWBC demonstrated a similar appetite for hounding militant unions and workers.
For example, in September 2013, the federal court found 117 construction workers guilty of “unlawful” industrial action under the Fair Work Act. The action was taken in 2008. They had gone out for eight days in defence of entitlements under their union collective agreement to a redundancy payment and re-employment on the next phase of the project.
The dispute was resolved, work continued but that did not stop the FWBC taking the matter to the federal court.
In 2013, the Supreme Court Judge Anthony Cavanough fined the CFMEU in Victoria $1.25 million and ordered the union to pay the costs of the Grollo construction company, reportedly around $2 million. That was on top of its own costs, believed to be close to $1 million.
HOWARD’S GHOST RETURNS
The Abbott Coalition government set up a royal commission into trade union corruption chaired by Justice Heydon with the aim of demonising legitimate trade union activity and militant trade unions and unionists. It failed dismally to do this, although the corporate media came to the party with daily spreads suggesting trade union leaders were corrupt bullies with links to bikie gangs. Ironically Heydon was later discredited when in 2020 an investigation on behalf of the High Court found that Heydon had sexually harassed six female associates while he was a member of the Court.
The anti-union Commission was used to justify the reincarnation of Howard’s ABCC but with extended scope, a massive hike in penalties, and the outlawing of all pickets that related to industrial relations matters in the industry.
Once again it has been up to the CFMEU to chase the millions of unpaid entitlements and enforce working conditions, despite the activities of the ABCC, while being hit with massive penalties and union organisers losing their right of entry permits.
The penalties only tell half the story. There are millions in legal costs, hours and hours of union time taken up fighting the ABCC in the courts all of which divert the union from other important work – one of the aims of the legislation. Meanwhile employers are using the ABCC at every opportunity to screw over workers and their unions.
The courts are increasingly applying maximum penalties for union representatives and workers and have introduced the vindictive concept of “personal payments.” Where the court has applied a “personal payment” decision, it is illegal for the fine to be paid or reimbursed by the union or by crowd funding.
The aim is to intimidate others for fear of having their homes or other property seized. Maximum penalties for individuals can run into tens of thousands of dollars.
The ABCC is also attacking union officials by taking them to court to have their entry permits revoked, meaning they cannot legally enter a workplace to see their members, recruit, organise or follow up safety issues. There is a list of more than forty union officials and organisers who no longer have a permit on the ABCC’s website – all but three are CFMEU.
WHAT PRICE A LIFE?
The bias of the ABCC can be illustrated by the example of a young apprentice who in March 2018 lost his life after falling six metres through a skylight to the ground. The apprentice and his supervisor were wearing safety harnesses, but neither of their harnesses were connected to an anchor point! The District Court ordered the company to pay a fine of $400,000. The Court found the level of culpability was in the “high end of the mid range.” The maximum possible penalty was $1.5 million.
The case was referred to then Industrial Relations Minister Michaelia Cash who excluded the company from tendering for Commonwealth government funded work for nine months.
Compare this with the case relating to pickets at Botany Cranes where the union and seventeen officials were fined a total of more than $1 million when found guilty of “coercion” and “unlawful picketing” by the Federal Court in April 2021. The union was attempting to get the company to negotiate a union enterprise agreement.
It is worth noting that the penalties apply to both the trade union (CFMEU) and individuals, whereas in the case of a company, only the company is penalised, not those responsible.
Referring to the NSW President of the union, Rita Mallia, the court said:
“… [Ms Mallia] succumbed to what is obviously the embedded culture in the Union. That culture treats the laws enacted by the Parliament as irrelevant to what the Union and its officials feel free to do in breach of them. The Union regards any penalty as a mere price of its doing business. It is essential that persons in the senior leadership of the Union, such as Ms Mallia, and its members generally, be deterred from engaging in such behaviour.
“The price of contravention must be set so high that persons who might feel emboldened by the toxic culture, revealed in the Union’s history of defiance of the law, know that the Court will exercise its powers to deter them and any others who might contemplate doing so in the future.”
This statement spells out clearly the intent of the repressive, union busting ABCC and the legislation governing it. The aim is deter the union and “any others who might contemplate doing so in the future.”
It is important now to hold Labor to its commitment to abolish the ABCC but much more is needed in the way of industrial relations reform including the following:
- the right to strike
- the right of entry of trade union representatives
- abolition of Right of Entry Permit System
- remove 24-hour notice to attend workplace
- abolition of Fit and Proper Test for union officials
- the right of association
- the right of unions to negotiate industry and enterprise agreements
- a new inspectorate to enforce employer compliance.