Rudd's secret industrial inquisition

August 2, 2008

Former PM John Howard's blandly named Australian Building and Construction Commission (ABCC) remains under PM Kevin Rudd. It is prosecuting Victorian vice-president of the Construction, Forestry, Mining and Energy Union (CFMEU), Noel Washington, who faces six months' jail for not answering questions about a union meeting.

On the first day after winning Senate control (before Work Choices) Howard rushed through his anti-union agenda, targeting first (and most unfairly) the building and construction unionists with the Building and Construction Industry Improvement Act 2005 (BCII Act, "improvement" only for the employers).

The BCII makes union strikes that were formerly legitimate now "unlawful". A new offence of "unlawful industrial action" prohibits a worker or union from strike action. Fines are $110,000 for unions and $22,600 for individuals. Formerly, strikes were settled by union negotiation or by the Australian Industrial Relations Commission (AIRC).

The BCII is enforced by the ABCC. Workers withdrawing their labour are subject to secret inquisitions into union disputes. ABCC lawyers apply for penal sanctions. Howard's last IR minister Kevin Andrews said he was "clarifying the regulation of industrial action". But this disingenuous spin hides his politically motivated legal strategy to suppress the few building union strikes.

From 1981-2002, 99.76% of total working time was devoted to work, not striking. Under Work Choices strikes are even lower. No "endemic lawlessness" occurs. Targeting building industry disputes with heftier fines is in stark contrast with reality. This removal of a worker's right to strike is a breach of the basic human rights that Australia is supposed to uphold in a democracy.

Lawyers as attack dogs

Howard failed to destroy the Maritime Union of Australia during the 1998 waterfront attack. With the ABCC, he devised a legal-attack strategy instead of a direct confrontation with unions. "Instead of dogs and balaclavas, this time they are going to do it with wigs and gowns" says Tony Kucera, CFMEU lawyer, speaking in Joe Loh's documentary on the impact of the ABCC in the building industry, Constructing Fear.

In order to understand the building legislation, we go back to 2003 when Howard concocted the Cole Royal Commission (costing $64 million!) for political reasons to provide a cloak of legitimacy to union busting. Cole found "inappropriate union behaviour" such as short stoppages over poor site working conditions, minor union infringements of the right of entry and industry bargaining that he was opposed to, but that had existed for over 100 years.

Cole's logic was like "doublethink" in Orwell's Nineteen Eighty-Four. Behaviour that is not "unlawful", or to be more specific, that is lawful, can be deemed "inappropriate". Legislative changes can be recommended that will transform that which is "inappropriate" into that which is "unlawful". Through Cole's interplay of "unlawful" and "inappropriate", the vice of doublethink is played out. That which is lawful is unlawful.

Cole found little "inappropriate employer behaviour", ignoring evidence of global construction corporations and contractors not paying workers' legal entitlements, evading tax and breaching occupational health and safety (OHS) standards.

The BCII prohibits all industrial action during an agreement. Employers can make changes adverse to workers during the term of the agreement, but it is illegal for unions to respond with industrial action.

Construction project agreements negotiated by project managers, contractors and unions provide practical guidelines and stability and protect workers' entitlements. The BCII makes them unenforceable.

An organiser must not ask the contractor to employ, as was the accepted practice, an experienced union delegate as a union OHS delegate to enforce safety. Employers are not to be pressured to make superannuation payments to a particular fund.

Work Choices, made law in 2006, gave more penal powers for corporate interests to severely limit the lawful strike. Work Choices outlaws union pattern or industry-wide bargaining strikes. This denies industrial relations reality, as there is always a mixture of enterprise and industry bargaining.

Under Work Choices, the limited right to strike is even more severely constrained by complex compulsory ballots. Employers retain their legal right to lockout with no ballot requirement; the most unbalanced scheme in the Western world.

Lawful strike action can lose its protection, with the AIRC terminating the lawful strike. A new penal power compels the AIRC to halt any strike that is not protected. Building corporations in new projects use the controversial Work Choices provision for "greenfield employer agreements", where, unbelievably, employers fix wages themselves, not with workers and unions. Union right of entry is also severely restricted.

Work Choices removed the limited immunity against the ancient doctrines of the common law of tort, which makes a strike illegal and the union subject to crippling damages, such as the damage claim of $6.48 million against the Australian Federation of Air Pilots in the 1989 pilots' dispute. Kumagai-Leighton has a common law action against the CFMEU for damages.

The right to strike, as a human right, should not be prohibited.

Enforcement the ABCC way: Trashing civil liberties

One reason Howard established the ABCC was because employers were reluctant to prosecute their workers after the dispute was settled by agreement. The ABCC prosecutes instead of the employer.

The ABCC, under ministerial control with an annual budget of $55 million and more than 120 "inspectors" from policing agencies, is a unique form of political executive power. The ABCC uses draconian coercive powers to interrogate workers and union officials. During an investigation, "inspectors" may threaten a penalty of imprisonment for six months against any individual summonsed to attend for questioning who does not answer questions or fails to hand over documents. Workers cannot choose their own lawyer. It is also an offence to speak to anyone about what happened in the interrogation.

The BCII removes the common law privilege against self-incrimination and the right to silence, a critical legal right. Building workers need to have done nothing wrong to be subject to a tirade of hours of questioning, with no rules of evidence. Workers involved in union stop-work meetings face a harsh choice: answer the ABCC questions or face six months' jail! Washington is under such threat. Even suspected murderers are not denied the right to silence.

The ABCC spends millions on lawyers. The combined impact of large fines and costs are very heavy-handed sanctions against strike action.

The ABCC operates without any industrial fair play. The International Labour Organisation in 2005 said the BCII Act breached internationally accepted tripartite labour standards. It had no safeguards against interference in union activities; the ABCC can interrogate any person, in the absence of any suspected breach of the law; there is no appeal; penalties are not proportional to the offence committed; serious sanctions can be incurred and the protection of the right to strike is contravened. ABCC inspectors' coercive powers go further than the police and ASIO. While in opposition, some ALP MPs argued that building workers have inferior "rights" to the limited rights of suspected terrorists. This has no counterpart in the democratic world.

The CFMEU warned in newspaper ads: "In what country can you be interrogated about a routine union meeting, and jailed if you don't comply?" This denial of civil liberties is an excess of state power against the individual worker or union official. This is an abuse of the rule of law, restricts political expression and is another example of Howard's police state — yet it is being retained by Rudd.

In an industry with 50 deaths each year, the priority for the safety and lives of workers should prevail over profits. OHS lawful strikes are now more risky. Brodene Wardley, OHS Delegate and Safety Rep of the Year, was "belittled" by the ABCC over a legitimate safety concern and tells her story in Constructing Fear.

The best enforcers of OHS standards are the union safety representatives trained for prevention and compliance. Under the BCII, union training schemes and paid OHS union training leave are prohibited.

The BCII also outlaws socially responsible union campaigns, such as the world-leading environmental green bans and campaigns on global warming. Unionists being able to attend political protests against global warming is an important civic freedom of political communication in a democracy. The International Labour Organisation says the political protest strike is a legitimate action.

Police state

Labour minister Clyde Cameron in Gough Whitlam's ALP government quoted a statement from Republican US President Eisenhower in 1970: "The right of workers to leave their jobs is a test of freedom. Hitler suppressed strikes. Stalin suppressed strikes. But each also suppressed freedom. There are some things worse than strikes, much worse than strikes — one of them is the loss of freedom."

As Cameron concluded: "Eisenhower was correct in pointing out that the hallmark of the Police State is the loss of the right to strike. A worker's right to strike is surely a basic human right. The right to withdraw labour is the one thing that distinguishes a free worker from the slave. This is a fundamental freedom."

Workers in the Your Rights at Work campaign are angry that Rudd, despite ALP MPs forcefully opposing the BCII when it came to a vote in parliament, will keep the ABCC until 2010. Australian workers deserve a right to strike, without penalties.

[Chris White lives in Canberra and researches labour law. For references email or for more information on the ABCC visit]

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