- The Guardian
- Issue #2047
Photo: Anna Pha
The federal Labor government might have abolished the union-bashing Australian Building and Construction Commission (ABCC) but its dirty work has been taken up by the Fair Work Ombudsman (FWO). The FWO has taken carriage of 35 court cases against the construction union and its officials that had been commenced by the ABCC.
While Labor has reduced the maximum penalties, they are still hefty. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and its officials have been hit by millions of dollars in penalties during the existence of the ABCC and face the possibility of ongoing fines amounting to millions more.
Earlier this month the Federal Court handed down two decisions with penalties totalling hundreds of thousands of dollars.
In the first case the court imposed $114,000 in penalties against the CFMEU and three current and former officials after they “unlawfully disrupted” a Sunshine Coast project site in Queensland. Of that, $88,000 was against the CFMEU, $12,000 against Blake Hynes, and $7,000 against each of Te Aranui Albert and Michael Ravbar.
In addition, the court made “personal payment” orders against Hynes and Ravbar. This means the union cannot pay the fines of these officials.
The first decision of a court to impose “personal payment” orders was appealed against by the union in 2017. In February 2018, the Federal Court found the Fair Work Act empowers courts to impose “personal payment” penalties in relation to monetary penalties under the Act.
“It brings home to that person the reality of a pecuniary penalty which is critical to the attainment of the deterrent effect which is the very point of the penalty,” the Federal Court stated in its finding to the appeal brought by the CFMEU.
The aim is to intimidate others with fear of having their homes or other property seized. Maximum penalties for individuals can run into tens of thousands of dollars.
In the second case, the Federal Court imposed $179,000 in penalties against the CFMEU and seven current and former officials – Kurt Pauls, Beau Seiffert, Te Aranui Albert, Blake Hynes, Luke Gibson, Matthew Parfitt, and Royce Kupsch – over alleged breaches of right of entry laws.
This included $85,000 against the CFMEU, $30,000 against Pauls, and $25,000 against Seiffert. The court made personal payment orders in relation to Seiffert and Hynes “given the record of previous contraventions.”
The CFMEU has called for the Fair Work Ombudsman to be abolished and replaced with a regulator that is focused on the real issues affecting workers. Incoming CFMEU National Secretary Zach Smith said “Australia’s industrial watchdog [FWO] is more like a toothless Chihuahua than any serious workplace regulator.
“The Fair Work Ombudsman’s priorities are all wrong. It is fundamentally broken beyond repair. Australian construction workers are facing endemic corporate insolvency, wage theft, and sham contracting. But the ombudsman is prioritising the anti-worker ideological fights of the previous Coalition government. According to PwC’s 2019 estimate, construction workers are underpaid $320 million each year.
“We need to scrap the Fair Work Ombudsman and start again. It’s time to start from scratch with a body that puts workers first.”
The new regulator would:
- Not commence or continue prosecutions against unions and their members for activity that is protected under the relevant ILO conventions;
- Be armed with the power to effectively address security of payment issues;
- Make compliance and enforcement activity a priority including protecting workers’ rights and the recovery of unpaid wages and entitlements;
- Be supervised by a board including at least 50 per cent workers’ representatives.
The union and its organisers were punished to the tune of hundreds of thousands of dollars for doing their job – protecting the interests of their members.
Without the ability to take industrial action or the threat of taking such action, trade unions and workers are powerless when confronting employers. The right to take industrial action is a basic human right, recognised under international law, but not under Australian law.
The courts are increasingly applying maximum penalties for union representatives and workers and have introduced the vindictive concept of “personal payments.”
Labor has abolished the ABCC. It is time to take the next step of legalising trade union rights such as the right to take industrial action and the right of entry of trade union representatives.
The Communist Party of Australia stands in solidarity with construction workers and their union the CFMEU. In the current environment workers must take it to the streets and demand the Albanese government abolish the ABCC and Registered Organisations Commission in practice. Actions not words!