Wednesday, August 20, 2003

Howard's attacks on construction workers must be defeated

Lisbeth Latham

It is expected that during the current session of federal parliament, a range of new anti-union legislation will be introduced by Prime Minister John Howard's Coalition government, including legislation aimed at “reforming” the construction industry. This legislation will be based on the recommendations from the royal commission into the building industry.

The majority of the 212 recommendations in commissioner Terry Cole's report are aimed at protecting the bosses' profits by limiting the ability of workers and their unions to organise and by increasing the ability of the government to take punitive action against militant unions. The recommendations include:

  • Establishment of an Australian Building and Construction Commission (ABCC) with powers to investigate and prosecute breaches of law. It would have powers similar to the Australian Competition and Consumer Commission and have the power to enforce the Trade Practices Act against unions that block the ability of companies to operate. The ABCC will offer free legal advice to those who want it. It would also supersede the Office of the Employment Advocate, which would then focus on other industries.
  • Drafting a Building and Construction Industry Improvement Act, which would override the Workplace Relations Act (WRA) if the two clash.
  • Increasing fines for violating the WRA, the Building and Construction Industry Improvement Act or the Trades Practices Act to $20,000 for individuals and $100,000 for unions.
  • Outlawing industry-wide pattern bargaining. In order for enterprise agreements to be registered with the Australian Industrial Relations Commission (AIRC), they would have to be proven to be not part of a pattern bargaining campaign. Unions that conduct pattern bargaining campaigns could face deregistration.
  • Making unions and individual workers liable for the losses they “cause”.
  • Disqualifying officials who “engage in unlawful conduct” from holding office.
  • Giving the ABCC the power to cancel a union official's right of entry to building sites where it is “abused” and making all such visits subject to the ABCC's supervision.
  • Mandating secret ballots before any industrial action is undertaken.
  • Limiting unions to two weeks of protected industrial action followed by a three-week “cooling off” period. If industrial action is voluntarily ended prior to the two weeks then the three-week cooling off period must be completed before further action is taken.
  • Stripping from the National Building and Construction Industry Award (NBCIA) and state building industry awards all allowances except four — a general allowance payable to all workers, a living away from home allowance, a meal allowance and a travelling allowance.
  • Stripping from the NBCIA any limitations on the time that work can begin, days that can be worked or clauses specifying when rostered days off will be taken.
  • Limiting the awarding of federal government building contracts to contractors and sub-contractors who adhere to the government's National Code of Practice for the Construction Industry.

If implemented, these recommendations would drastically reduce the capacity of construction unions to win and maintain decent conditions of employment for workers in the industry. Banning pattern bargaining would mean that conditions of work would be dependent on the strength of the union on individual building sites and create large variations in employment practices between sites.

The Master Builders Association's support for almost all the recommendations demonstrates that they are biased in favour of the employers. The MBA only has a few small quibbles with the recommendations. For instance, the MBA argues that the ABCC should be empowered to initiate and conduct civil litigation against unions on behalf of builders rather than simply give advice on legal action. It also opposes the recommendation that the AIRC set a maximum of overtime hours to be worked per week.

The Howard government is hoping to get legislation incorporating these recommendations approved by the Senate, using the argument that greater powers are needed to “re-establish the rule of law” on building sites because of the royal commission's finding of 392 cases of alleged unlawful conduct. In nearly all of the cited cases, however, union members and officials had attempted to enter building sites to hold stop-work meetings, seek strike pay or seek to ensure that all workers on a site were union members.

It is in the interest of all workers to stop the Howard government's attack on the construction unions. If the government is successful with its attack on construction workers, then it will be in a far stronger and more confident position to attack other workers — it could move to have the construction industry laws extended to all other industries to “ensure uniformity and consistency” in the industrial relations system.

Importantly, Howard and workplace relations minister Tony Abbott know that if the construction industry legislation passes in the Senate, it will be harder for the Construction, Forestry, Mining and Energy Union (CFMEU) to provide solidarity with other unions under attack, such as it did during the 1998 waterfront dispute.

During the campaigns against the WRA in 1996 and the “second wave” of Howard government industrial relations legislation in 1999, the ACTU focused on lobbying the opposition parties in the Senate, particularly the Australian Democrats, to block the legislation. This approach failed when the Democrats did a deal with the Howard government in 1996 to pass the WRA.

Although the government does not have a majority in the Senate, it would be dangerous to rely on this to block the anti-union legislation. Since 1996, Howard has succeeded in getting most of his government's major pieces of legislation through the Senate. On the great majority of legislative bills, the independents, the Democrats and the ALP have given the government the numbers to pass particular pieces of legislation.

When Green Left Weekly approached the Democrats and independent senator Meg Lees for comments about the government's intention to introduce legislation restricting the industrial rights of construction workers, they declined to comment until the exact details of the legislation have been provided by the government.

Although the government hasn't produced the exact details of its legislation, it has made it crystal clear that it intends to drastically reduce the ability of construction workers and their unions to fight for improvements in their working conditions and wages.

In a number of public statements the Democrats have indicated that they support some of the recommendations of the Cole commission. In an address to the MBA in Queensland on May 22, Democrats' leader Andrew Bartlett argued that his party sees the “restoration of law in the construction industry as a key outcome”. To achieve this, Bartlett argued for the introduction of private-sector whistleblower legislation to enable individuals to make anonymous allegations of misconduct, and ensure that unions are made responsible for the “unlawful” conduct of officials and members.

There are a number of problems with the Bartlett's approach. Firstly, whistleblower legislation would reproduce the procedures of the royal commission where allegations were made against unions without any opportunity for unions to test the truth of the allegations.

Secondly, the Democrats' approach is to ensure that no violations of the WRA occur, regardless of why they occur. Within the construction industry, like all industries, employers are constantly devising ways to increase profits — by driving workers to work faster or for excessive hours, by failing to pay appropriate wage levels or entitlements, and by taking shortcuts around occupational health and safety.

In order to fight these attacks on working conditions it is necessary for unions to identify them by gaining entry to work sites and accessing relevant documentation, involving members in stop-work meetings to determine a course of action and then by taking industrial action.

The WRA deems almost all industrial action to be illegal, so it is almost impossible for workers to defend their rights without taking “illegal” industrial action.

The Cole commission found that 230 of the 392 findings of “unlawful” conduct committed by the construction unions had been committed by the Western Australian branch of the CFMEU. But the overwhelming majority of these were for union officials insisting on their right to enter building sites and visit their members despite WA industrial legislation banning the right of entry. This was an undemocratic law which had to be broken if the union was to organise its members.

Bartlett's speech to the MBA indicates that his call for harmony on building sites is really a call for unions to give up industrial action. Although he did make some small demands on employers regarding health and safety and the payment of entitlements, they are demands which cannot be achieved without strong unions that are prepared to take action to ensure employers' compliance.

Bartlett's comments to the MBA indicate that it would be a serious mistake for unions to rely simply on lobbying the Democrats to block the government's anti-union legislation in the Senate.

It is much more likely that the Senate would block the legislation, or the government not introduce it, if the building industry bosses know they will face a massive national campaign of strikes, workplace bans and public rallies organised by the entire union movement if the government attempts to put the Cole commission's recommendations into legislation.

In 1995, a united campaign of sustained industrial action and street protests by the union movement in Western Australia stopped the state Coalition government's proposed “second wave” of attacks on union rights. This campaign included rolling strikes and 24-hour stoppages.
However, in 1997, when the WA Coalition government again tried to put the measures through parliament, the trade unions failed to continue the campaign and the government was able to get the legislation passed.

While the construction unions in Western Australia and Victoria have mobilised against the Cole commission, it is vital that the entire union movement commit itself to take sustained action to defeat the Howard government planned attack on the construction unions.

Originally published in Green Left Weekly #550


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Revitalising Labour attempts to reflect on efforts to rebuild the labour movement internationally, emphasising the role that left-wing political currents can play in this process. It welcomes contributions on union struggles, internal renewal processes within the labour movement and the struggle against capitalism and imperialism.

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