A landmark Federal Court hearing for 96 Western Australian construction workers that begins on October 24 is the most dramatic demonstration yet of the impact of the Howard government's draconian IR laws.
The case will mark the first time that a group of workers who took "unlawful" industrial action — striking for the reinstatement of their elected health and safety union officer in February 2006 — are being individually prosecuted by the government's Australian Building and Construction Commission (ABCC).
Charges were initially brought against 107 workers, but earlier this month, following negotiations with the Construction, Forestry, Mining and Energy Union (CFMEU), the ABCC dropped charges against 11 workers who were not involved in the strike, and downgraded charges against a further four workers.
Full charges are proceeding against 92 workers, who face fines of up to $22,000 each for allegedly contravening the government's 2005 Building and Construction Industry Improvement Act, which places harsh restrictions on the rights of the industry's unions and workers to organise.
The workers were employed by Leighton-Kumagai on the city tunnel section of the Perth-Mandurah rail line. The Australian Industrial Relations Commission (AIRC) issued an order in December 2005 instructing the CFMEU and all the workers employed on the rail project "to not take industrial action". Eighty-two of the charged workers also face further fines of up to $6600 each for breaching this order.
The majority of charges brought by the ABCC since its establishment in October 2005 have been against unions and union officials over alleged breaches of the 1996 Workplace Relations Act and the Building and Construction Industry Act.
In the face of lingering militancy in the CFMEU, the Howard government is attempting to use the ABCC to tie the union up in constant court cases and bankrupt it through large fines for technical breaches of the law. Some of the cases before the courts include union officials who have been sued for entering work sites, unions that have been sued for "coercing" employers to enter into certified agreements, and unions and officials being sued for "making false and misleading statements about a person's obligation to join a union".
The CFMEU and five workers who were employed at a John Holland mine site in NSW are being prosecuted for allegedly taking industrial action in 2005 after the company failed to act when the workers complained about maggots in their food. The AIRC found that this was not a health and safety issue.
A small number of building companies have also been charged by the ABCC. After a death of a worker in the construction
industry, employees at Maxim Electrical Services in Victoria went on strike in 2003. Maxim has been charged by the ABCC and penalised by the courts for paying strike pay.
While the vast majority of the ABCC's charges are against the CFMEU, the Australian Manufacturing Workers Union, the Australian Workers Union and the Communications Electrical Plumbing Union are also facing charges from the ABCC.
In preparing its cases for prosecution, the ABCC operates in complete secrecy. When brought for interrogation by the ABCC, a worker is allowed to have legal representation, but neither the worker nor their lawyer can speak to anyone else about the process. If they do, they face imprisonment.
Workers brought in for interrogation by the ABCC face six months' in jail if they do not give answers while attending or "provide the required information or documents" demanded by the ABCC.
The Howard government is funding the ABCC to the tune of $32 million a year. It was established as a recommendation of the 2001-03 Cole royal commission into alleged corruption in the building industry. While the commission found 392 cases of "unlawful" conduct committed by the construction unions, the overwhelming majority of these were for things like holding unauthorised stop-work meetings, seeking strike pay and trying to ensure all workers on site are union members, and in WA, for union officials insisting on their right to enter building sites despite WA legislation banning the right of entry.
The Cole commission and the subsequent Building and Construction Industry Improvement Act 2005 that established the ABCC are the culmination of a decades-long drive by successive governments against the militant tendency in the construction unions — a tendency that has survived despite the Hawke Labor government's deregistration of the Builders Labourers Federation in 1986.
In the years leading up to the establishment of the Cole commission, the CFMEU had been engaged in a number of progressive struggles, including providing crucial support for the Maritime Union of Australia in the 1998 waterfront dispute, supporting East Timor's fight for independence and engaging in pattern bargaining to win a 36-hour work week.
In WA, the Howard government's relentless campaign against the CFMEU has been backed 100% by the state's only daily newspaper, the West Australian. A week barely passes in which the paper does not editorialise against the union and its WA leaders, Kevin Reynolds and Joe McDonald.
The March 9, 2006, West Australian editorialised: "How much longer does this thuggish organisation think it can get away with defying the law and holding taxpayers to ransom with its outrageous actions on the Perth to Mandurah rail project? It is time for the State Government to explore every avenue to get the CFMEU deregistered.
"The time has come to take a baseball bat to the union and its strike-happy members and find out how many actually want to work and are prepared to do so under an Australian Workplace Agreement."
The paper's "Inside Cover" segment set a new standard in investigative journalism when on June 15 this year it asked, "Could Joe McDonald be wearing braces made by sweatshop workers who toil away in the so-called furnace factories of China in their desperate bid to earn just a few dollars a day?"
The paper's anti-CFMEU campaign has now switched into election mode, with McDonald's ongoing membership of the Labor Party being a lead news item these days. Recent West Australian headlines have included, "Rudd must expel WA union heavies: builders"; "Rudd must dump WA union heavies: Hockey"; and "Builder warns of union payback if Labor wins".
The future of the ABCC was in doubt when the ALP national conference earlier this year voted unanimously to disband the body if Labor won this year's federal election. But federal ALP leader Kevin Rudd and shadow workplace relations minister Julia Gillard have since caved in to the campaign run by the Coalition government and the building companies claiming that housing costs will rise if the ABCC is disbanded
Union members have pointed out that the CFMEU covers construction of commercial buildings, and has nothing to do with the housing industry. Under the ABCC, what has risen has been the rate of workplace deaths and injuries in the building industry.
Despite this, the ALP leadership has committed a Labor government to retain the ABCC, with its powers intact, until 2010, and to then transfer its functions and powers to a specialist division within Labor's Fair Work Australia IR agency.