Gillard's 'Construction Stasi'


Dare the ALP gaol Adelaide building worker, Ark Tribe? Tribe's refusal to attend a secret hearing of the Australian Building and Construction Commission (ABCC — aka the "Construction Stasi" because of its secret police-type powers) renders him liable to six months in prison or a fine of $22,000.

Similar penalties apply if he turns up but refuses to answer, or if he answers but then tells anyone what the questions were. The power to coerce testimony also applies to passers-by whom the ABCC feels might provide evidence of wrong-doing by unionists, as happened to a Melbourne university lecturer.

Many Australians, on hearing about this regime, cannot believe its provisions apply to anyone but terrorism suspects.

Had Tribe submitted, he would have been cross-examined about a meeting he attended on a construction site at Flinders University to deal with safety violations, about which the official regulator later served two notices on the employer.

Months afterwards, Tribe got a summons from the ABCC, which he refused to obey.
The construction division of the Construction Forestry Mining Energy Union (CFMEU) sent Tribe, as a delegate, to the congress of the Australian Council of Trade Unions (ACTU) in June. He was cheered while deputy prime minister Julia Gillard was heckled during her "keep-the-cop-on-the-beat" speech.

The anger among even ACTU delegates close to the government was fed by its failure to dismantle Work Choices. Instead, the Fair Work Act keeps most industrial action illegal for workers in all sectors of the economy. Stoppages over political questions such as the environment, war or domestic repression are banned.

Pattern bargaining of the type conducted by the Hollywood script-writers in 2007 will be an offence.

Work Choices was by no means the most savage of the attacks on workers and their organisations under the previous government. In 2000, Royal Commissioner Terence Cole QC, investigated the building and construction industry.

Cole catalogued all the behaviours that employers deemed "inappropriate" and recommended that they be made offences, which the government did under the Building and Construction Industry Improvement Act (BCIIA) in 2005.

Cole said he had put allegations of criminal behaviour by unionists into a secret volume to preserve their right to a fair trial. No one has ever been indicted on the basis of that information.

The Howard government set up the ABCC to enforce the avalanche of unlawfulness Cole had created. The "Stasi" began its investigations with a move against workers who had stopped for 20 minutes to take up a collection for a deceased workmate.

However, the prime target was the policy of "deaths-in-industry" stoppages on full pay, which the Victorian branch of the CFMEU had initiated to bring instant pressure on employers to improve safety.

Under the ABCC, the union could be fined more for stopping after a fatality than the employer would be if they were ever convicted over the death. The unionists can be imprisoned: the employer could not.

In June 2008, the ALP government appointed retired judge Murray Wilcox to report on whether there was any need to maintain special provisions for the building and construction industry once it was incorporated into the Fair Work regime.

Once he accepted Cole's equation of "inappropriate" with illegal, Wilcox had no difficulty in finding that significant areas of unlawfulness remained, and so recommended keeping the coercive powers.

On June 17, Gillard introduced a bill for special provisions over the building and construction industry within the Fair Work system. The new arrangements promise change: off-site work will no longer be covered, and penalties will become the same for all sectors.

Nonetheless, the bill sets up a Building Industry Inspectorate with the "coercive interrogation powers" of the ABCC. However, the Inspectorate will be subject to limitations on the exercise of its powers by the Administrative Appeals Tribunal and the ombudsman. Welcome as any oversight provisions must be, the prime beneficiaries will be lawyers.

In a surprise addition, Gillard announced that, '[o]n projects that commenced on or after 1 February 2010 an interested person will be able to make an application" to yet another tribunal — the Independent Assessor, Special Building Industry Powers — "to have coercive powers switched off in relation to a specific project". This concession will allow the de facto immunity for tame-cat unions to be made de jure.
Gillard's second reading speech instanced no proven illegality by workers. Instead, she justified the Stasi-like powers as necessary to combat "high levels of unlawfulness as evidenced by allegations, investigations, prosecutions, audits and the like".

Why did Gillard not mention convictions? Her definition of "unlawfulness" includes Tribe's involvement with the on-site meeting over justified safety concerns, and Victorian CFMEU official Noel Washington's presence at a lunch-time barbeque in a neighbourhood park.

A feature common to the Cole Royal Commission, the BCIIA and the ABCC has been the almost total absence of attention paid to offences by employers. This lack of balance applies to the new legislation. Much of what employers told Cole was "inappropriate" had been behaviour by unionists in upholding laws that government agencies failed to enforce, whether in regard to occupational health and safety or the non-payment of wages and benefits.

In 2007, the tax office reported it had collected $93 million in unpaid superannuation contributions. The deputy commissioner admitted this was only the tip of an iceberg.

Gillard's determination to "drive cultural change" in the industry is aimed at unionists, never at corporates with their history of price-fixing. A body with the powers of the ABCC is well placed to test how effective has been the Chinese Wall between the Hochtief-owned triad of construction giants — Leightons, Hollands and Thiess.

A judicial inquiry into the Sydney casino found, in 1994, Leighton's CEO Wal King to be "not of good repute, having regard to character, honesty and integrity", and that he did not "truly accept even now that the practice of the false invoices was dishonest".

Indeed, King justified their use to conceal price-fixing as "the culture … and custom that had been long-standing in the industry that had been handed on for years".

Cole did not look into whether this cartel culture persisted, a wise precaution given that a Royal Commission appointed in 1990 to nail the building unions had exposed the NSW Master Builders Association as the clearinghouse for collusive tendering.

The co-founder of the construction giant Transfield and arts patron, Franco Belgiorno-Nettis, told his firm's official historian that he had covered up his criminality with "a veneer of civilisation".

Union campaigns against the ABCC and the coming Inspectorate insist on "one law for all". That demand will not be met under the new bill. Unequal levels of repression of building workers will continue under Fair Work Australia. Moreover, the coercive powers will not be applied to the employers.

The ABCC has punished a few employers — for behaving decently. Even if the coercive powers were abolished, there still would be one law for corporations and another for workers, notably in regard to occupational health and safety.

Gillard's definition of violence does not extend to the tens of thousands of building and construction workers expected to die from asbestos-related diseases. No executive or director of James Hardie faces penal sanctions over that slaughter.

Gillard admited that health and safety issues were "deliberately not included in Mr Wilcox's terms of reference". That exclusion meant that Wilcox could not investigate one of the principal realms of illegalities by employers, or use that investigation to explain the levels of "unlawfulness" by workers defending themselves, as in the case of Tribe.

Why is the ALP taking this "cop-on-the-beat" line? The answer is as multi-faceted as the interests of the players, but includes:

• to expedite its $40 billion infrastructure spending to revive the economy during the global crisis;

• to acknowledge the tens of millions of dollars in donations from developers into ALP coffers;

• to advance Gillard's ambition of becoming prime minister by selling herself to the dominant right-wing factions of the party as someone no longer from its disintegrating socialist left;

• to deal with the peculiarities of disciplining labour-time on building and construction sites in contrast to process lines; hence, the need for the ABCC/Inspectorate as second-line foreperson to fill in the pores in the working day to ensure maximum profit. In Canberra, the "Construction Stasi" compelled employers to deduct four hours pay from workers back late from lunch by five minutes;

• to break the last of the unions that see an irreconcilable conflict between capital and labour; and

• to build up the Australian Workers Union (AWU) and its grabbing of coverage at lower wages and worse conditions, as it is still trying on at Melbourne's Westgate Bridge, in cahoots with a Hochtief subsidiary, Holland.

Threading through these interests is the ALP's retreat from legal equality. The refusal to restore even the facade of equality under capitalist law by abolishing the "Construction Stasi" is one more instance of the abandonment under New Labor of social equity.

Where next for unionists? A left-wing remnant inside the ALP raised the matter at its national conference on 31 July, with no chance of overturning the policy since the numbers on every issue are stitched up by right-wing factions and the AWU.

A motion affirmed that there is no "on-going" need for the "Stasi", a weasel-wording that Gillard welcomed as endorsing the five-year sunset clause in her bill.

That defeat leaves the Tribe solution of making the law unworkable. Protests around arrests and imprisonments will bring home to the public why employers deserve to face coercive powers about their safety violations and other criminality.

[Humphrey McQueen is the author of Framework of flesh, Builders' labourers battle for health and safety,]