Unionist faces jail for not answering ABCC questions — abolish anti-union secret police!

Lisbeth Latham

On August 11, Ark Tribe, a member of the South Australian Branch of the Construction Forestry Mining and Energy Union (CFMEU), will appear in court charged with refusing to answer questions from the Australian Building and Construction Commission (ABCC).

If he is found guilty he faces a maximum six months in jail.


Tribe is the second member of the CFMEU to face trial for refusing to cooperate with the ABCC. In November, the ABCC dropped a similar case against CFMEU Victorian branch assistant secretary Noel Washington.

Despite union opposition to the undemocratic powers of the ABCC, the ALP government, under PM Kevin Rudd, plans to keep most of the ABCC's powers under a new body — the Building Industry Inspectorate.

Unions, particularly blue-collar unions, have pushed for the total abolition of the ABCC since the election of the Rudd government in late 2007.

The ABCC discriminates against building union members by treating them as criminals and takes away many of their rights, including the right to silence.

The ABCC’s coercive powers are designed to intimidate building workers. It can order any person it deems to have information relevant to an investigation to face interrogation or face six months’ jail.

Ironically, the penalty for an individual failing to cooperate with the ABCC is far worse than the penalty for many of the “violations” the ABCC investigates.

Unions have also said the ALP has a mandate to remove all of the Howard government's anti-worker legislation. Most who voted for the ALP did so in the belief the ALP would abolish all of the anti-union legislation of former PM John Howard.

A ruling by the International Labour Organisation in March has increased the pressure on the government. The ILO said the ABCC and the associated Australian Building and Construction Industry Improvement Act breach Australia's commitments as a signatory to the ILO's conventions.

Yet the government is trying to justify keeping most of the ABCC's powers with the argument a “tough cop” has to deal with “lawlessness” in the building industry.

The Rudd government is employing the same false argument the Howard government used to justify the introduction of the union-busting ABCC.

Howard set up the ABCC in 2005 under the cover of recommendations made by a royal commission into the building industry led by former judge Terence Cole. The government launched the Cole commission, with $60 million in funding, to investigate “unlawful activity” in the construction industry. Unions condemned the commission as a blatantly anti-union exercise.

When the commission was launched in 2001, the ALP described it as a witch-hunt against the militant construction unions, in particular the CFMEU.

Ninety percent of the commission's time was devoted to allegations against building unions. Little or no time was devoted to investigating allegations against employers. Unions were denied the right to cross-examine witnesses who made allegations against them.

Despite the commission’s anti-union terms of reference, Cole was able to find only 392 cases of possible unlawful behaviour in the industry over a seven-year period. The vast majority of these “unlawful” acts were instances of unions holding on-site union meetings; union attempts to ensure all workers on sites were union members; and work stoppages over unsafe working conditions.

Although 30 of the incidents were associated with employer behaviour, these were largely instances of employers paying strike pay.

The commission failed to make any recommendations to stop employer breaches of occupational health and safety laws, despite the shocking one work-related death a week record of the industry.

The commission’s terms of reference did not include an examination of employer’s schemes to rob workers of their lawful entitlements.

The ABCC, with its power to initiate prosecutions, was created by the Howard government to crush the industrial muscle of the building unions and help drive down wages and conditions in the industry.

The Rudd government's commitment to transfer most of the ABCC's powers to the Building Industry Inspectorate reflects that the ALP, like the Liberals, is committed to attacking the rights of workers to organise in order to protect bosses’ profits.

Originally published in Green Left Weekly Issue #804

Read more...

Socialist Alliance: Open Letter to delegates to the 2009 ACTU Congress

Dear fellow unionists,

As delegates to this ACTU Congress you have piles of policy before you, but one basic decision to make.

Should you back the ACTU leadership’s support for Rudd’s Fair Work Act or oppose it?

The Congress papers say that “the Fair Work Act sees the end of the direct legislative assault on organised labour” and “represents a substantial, albeit imperfect, transition of the 2006 ACTU Congress policy into legislation.”

That’s just spin! Read the Congress’s own Industrial Relations Legislation Factsheet and the truth comes out (see the basic facts about the Fair Work Act below, mainly taken from this Factsheet). Workers are still losing.

The draft Congress Industrial Relation Policy says that the new legislation gives the union movement a chance to “grow unions, protect jobs and advance workers’ interests”.


If the economy were booming we could almost believe this, even though it would still be a recipe for a stagnant union movement. But we’re entering the biggest recession in 70 years, with thousands of jobs already lost and one-and-a-half hands tied behind our backs by Rudd’s law.

If more workers have joined unions since 2006, it’s because the Your Rights at Work campaign was seen as defending their interests. To keep growing we must keep campaigning for our rights, which remain crippled by Fair Work Australia.

It’s high time to drop business-as-usual-don’t-embarrass–Kevin-and-Julia-too-much unionism. This compromised approach gave the vast majority of workers lower wage increases during the resources boom than would otherwise have been the case, and meant that profits and CEO packages skyrocketed (check the Congress Wages and Collective Bargaining Factsheet for detail).

Instead of a vague, feel-good resolution about “campaigning” and waiting for Kevin 2010 to remove the bad bits of the Fair Work Bill, this Congress must adopt two basic positions:

1. For a full-scale, cross-union industrial and community campaign against the Australian Building and Construction Commission, one that will continue until it or any replacement scheme is abolished, and building workers have the same rights as all other workers;
2. For a campaign of industrial disobedience to the most crippling provisions of the Fair Work Act, including its ban on pattern-bargaining, restrictions on the right to take industrial action, restrictions on the rights of unions to organise and enter work sites and restrictions on the contents of industrial agreements.
   

The November 2008 suspension of charges against CFMEU official Noel Washington shows that workers and their unions can win if they organise to act against injustice. It’s the sort of unionism we´ll need just as much under the Rudd government as under Howard.

Let’s build a campaign now against all that is still anti-worker in the Fair Work Act—beginning with the anti-democratic Australian Building and Construction Commission.

Socialist Alliance National Trade Union Committee
Distributed by Tim Gooden, Secretary, Geelong Trades Hall Council, as a contribution to debate at the 2009 ACTU Congress


Yes, the Fair Work Act is WorkChoices Lite!
Check out the following powers of the Fair Work Act, detailed in the Congress’s own Industrial Relations Legislation Factsheet.

If Malcolm Turnbull introduced such anti-worker industrial laws—which violate International Labour Organisation standards—wouldn’t the union movement be fighting them?

1. The Fair Work Act cuts back unions’ right to organise
   ↓ 24 hours notice of right of workplace entry, restricted access to employee records ↓Bans pattern bargaining, allowing very restricted “multi-employer bargaining” only for low paid
   ↓No restriction on employers using pattern bargaining
   ↓Employer right to seek injunctions against unions using pattern bargaining ↓Employer right to challenge the conduct of ballots to frustrate protected industrial action
   ↓No positive rights for union delegates
   ↓No positive rights for workers to join unions and participate in their work ↓Almost no recognition of the role of delegates in representing workers in bargaining process
   ↓ No requirement for employers to facilitate union access to workplaces
2. The Fair Work Act prevents workers from improving their living standards
   ↓Limits award content to 10 listed matters
   ↓Fails to enshrine in minimum standards: 11 public holidays per annum, a right for parents of pre-school children to part-time work, rights to information and consultation in the workplace, retrenchment pay for employees of smaller businesses, and any guarantee that workers entitlements will be paid first in the case of company failure
   ↓Restricts matters that can be covered in an agreement, banning enterprise-specific unfair dismissal and right of entry agreements.
   ↓Allows award modernisation that could result in reduced standards in some industries and occupations
   ↓Maintains existing AWAs, including ones that would not meet the government’s own standard for fair agreements
   ↓Allows an employer taking over a company to refuse to employ workers transferring from business being taken over
3. The Fair Work Act keeps penal powers, including those established by Work Choices
   ↓Requires secret ballots for protected industrial action
   ↓Preserves the Work Choices requirement that employers deduct strike pay even in circumstances where employees are at work
   ↓Allows the use of scab labour
   ↓Doesn´t give workers the right to conduct meetings to prepare for bargaining ↓Increases the penalties Fair Work Australia can apply to “ensure compliance” with its rulings
   ↓Bans industrial action in support of economic and social campaigns (like that against Work Choices)
   ↓Bans industrial action even where an employer proposes radical workplace restructuring
   ↓Keeps the anti-union provisions of the Trades Practices Act
   ↓Leaves a dispute with the boss to be settled in the normal court system unless the boss agrees to have it judged by Fair Work Australia
4. The Fair Work Act discriminates against different groups of workers
   ↓Removes “high income” earners from award coverage
   ↓ Leaves contract workers with fewer rights than employees, including no rights to union representation or collective bargaining
   ↓ Allows a longer qualifying period for employees in small business
   ↓Makes it easier for small business to sack workers
5. The Fair Work Act maintains unions in a weakened legal position
   ↓ Does not actually define the rights of unions
   ↓Abolishes unions as parties to agreements, which are made between employers and their employees
   ↓Does not require unions to consent to changes to an agreement, even when the union is covered by the agreement.
   ↓Fails to enshrine a right for all employees and unions to be informed about the strategic designs of the employers
   ↓Provides no clarity about where federal or state laws apply, much less enable workers to opt into the federal or state systems
   
   

Read more...

Australian Construction Workers Fight For Democratic Rights

Lisbeth Latham

Australian construction unions have launched a new campaign demanding that the Australian Labor Party (ALP) government of Kevin Rudd abolish the Australian Building and Construction Commission. Despite being elected on widespread working class anger against anti-union laws, the Rudd government have pledged to keep the ABCC in place at least until 2010, with the possibility it role be shifted to another government agency.


The ABCC was formed in 2005 following the passing of the Building and Construction Industry Improvement Act. Much of the legislation contained in the BCIIA had been recommendations of the 2001-2003 Royal Commission into the Building and Construction Industry (Royal Commissions are the highest level of public inquiry in Australia). It was established to investigate the “extent of unlawful activity in the construction industry”. Commissioner Terrance Cole found 392 incidents that might constitute of unlawful behavior in the industry over a seven year period. The vast majority of these were instances of unions holding on site union meetings, attempts to ensure all workers on sites were union members and work stoppages over unsafe working conditions. Thirty of the incidents were associated with employer behaviour, these were largely instances of employers paying strike pay. The terms of reference of the Royal Commission did not include examining unsafe work practices pursued by employers or the use of shelf companies which are closed down robbing workers of their entitlements.

REDUCING THE RIGHTS OF WORKERS
The BCIIA undermine the industrial effectiveness of Australia’s construction unions. In doing this it made illegal a wide range of previously legal industrial activity including:

• Banning collective agreements from including retrospective pay rises;
• Banning pattern bargaining, where unions seek common pay deals across hundreds of different employers;
• Increasing penalties for industrial action occurring outside bargaining periods to $110,000 Aud for unions and up to $22,000 for individuals;
• Requiring unions to hold secret ballots of their members before taking protected industrial action, including on urgent health and safety issues;
• Introducing a mandatory 21-day cooling off period after two weeks of protected industrial action;

In order to enforce the BCIIA, the ABCC was given extra-ordinary powers to investigate and prosecute workers. If the ABCC believes on reasonable grounds that a person has information or documents relevant to an investigation, or is capable of giving evidence relevant to investigation it can require a person to give the information, or documents or attend an interview. At an interview the ABCC can require a person to:

• Reveal all their phone and email records, whether of a business or personal nature;
• Report not only on their own activities, but those of their fellow workers;
• Reveal their membership of an organisation, such as a union;
• Report on discussions in private union meetings or other meetings of workers;
• The penalty for failing to hand over documents or answer all questions asked is six months imprisonment.

A TOUGH COP FOR A TOUGH INDUSTRY?
The Howard government, and now the Rudd government have justified the need for the ABCC, on the basis that the construction industry has a “culture of lawlessness”. However there is growing evidence that the ABCC focuses overwhelmingly on policing construction workers and their unions. Federal Court Justice Jeffrey Spender on October 8, said that the ABCC’s prosecution of the Queensland Plumbing Division of the Communication, Electrical and Plumbing Union and its state secretary Brad O’Carroll, was “misconceived and completely without merit”, and if the “Commission was even handed in discharging its tasks of ensuring industrial harmony and lawfulness in the building and construction industry proceedings” would have launched against the company that the CEPU had been in dispute with.

TARGETING ORDINARY WORKERS
These laws have been impacting on ordinary construction workers across Australia. The largest case was the charging of 107 members of the Construction, Forestry, Mining and Energy Union, following a strike by 400 CFMEU members of the in Western Australia following the sacking of the Health and Safety Officer on their work site. Of these workers, 87 of the workers were given fines of between $8,400 Aud and $10,000, Aud the ABCC had sort the maximum penalty of $22, 600 Aud.

A CFMEU vice president charged with coercing crane operators into negotiations faces six months jail time in December for refusing to appear before the commission.
The Australian trade union's say similar investigations have been little more than excuses for union-bashing politicians to seek publicity.

In September, police in Victoria state withdrew charges against a building worker after two years of investigation. The union member was fingered by the commission, which claimed he threatened to kill inspectors when they visited his worksite.

“They besmirched the name of an innocent man in a desperate attempt to portray construction unions as bullies and thugs,” said Dave Noonan, national secretary of the CFMEU. “It is a disgrace, an abuse of power and corruption of the political process.”

[For more information on the ABCC and the campaign against it visit http://www.rightsonsite.org.au/.]

This is an expanded version of an article that appeared in the November issue o f Labor Notes this version has been submitted to Union Syndicale Solidaires International the Journal of French Union Federation Union Syndicale Solidaires.

Read more...

Andrews plans new wave of attacks on unions

Lisbeth Latham

On November 6, federal Coalition workplace relations minister Neil Andrews introduced a new raft of anti-union legislation in federal parliament.

The federal government's Building and Construction Industry Improvement Bill 2003, and its associated Building and Construction Industry Improvement (Consequential and Transitional) Bill 2003 were both read for a second time. In addition, the Workplace Relations Amendment (Choice of Award Coverage) Bill and a revised version of the Workplace Relations Amendment (Termination of Employment) Bill 2002 were reintroduced into parliament. The new Workplace Relations Amendment (Better Bargaining) Bill was introduced into parliament for the first time.


These new pieces of legislation are central to the Howard government's new assault on the ability of workers and their unions to organise to defend their existing wages and working conditions and to fight for improvements.

The employment termination bill has three aims. The first is to continue the government's attempt to exempt “small business” from unfair dismissal legislation, reducing job security and protection for workers employed by businesses that have fewer than 20 employees. Under the bill, such workers will need to have been employed for six months before having access to any unfair dismissal provisions.

The bill will allow the Australian Industrial Relations Commission (AIRC) to deal with cases without a hearing, and to halve the maximum compensation that can be awarded to unfairly dismissed workers.

The bill also limits access to unfair dismissal entitlements for all workers — where redundancies are occurring in a workplace, there will be no access to unfair dismissal provisions. If workers find alternative work after being unfairly dismissed, the amount of compensation will be deducted from any back-pay order by the commission.

Most significantly, if passed, the bill will expand the number of workers covered by federal legislation, using the federal government's corporations' power, to include all those workers who are employed by incorporated companies. This represents approximately 85% of Australian workers, up from the 50% or four million workers currently covered.

Workers shifted to the federal system will lose their access to state legislation. If passed, the bill will strengthen the federal government's plan to create a single nation-wide industrial relations system.

The Choice of Award Coverage Bill is aimed at reducing the access of workers in small business to award coverage. When unions attempt to “rope in” workers into the award using a log of claims, it must be demonstrated that the union has at least one member in the workplace.

The Workplace Relations Amendment (Better Bargaining) Bill is aimed at building on the restrictions on protected industrial action passed in 2002. The legislation would ban all industrial action that occurs prior to the expiration of an enterprise agreement. Currently, industrial action taken to resolve issues not covered in an agreement prior to its expiration, is still protected action.

The bill will also empower the AIRC to impose “cooling off” periods during bargaining, which will make any form of normally protected action taken during this period illegal. A “cooling off” period can be imposed where protected action threatens to cause significant harm to any person (in reality, to the profits of an employer) and where suspension of bargaining would not be against the “public interest”.

Application for a “cooling off” period could be made on behalf of, or by, persons directly affected by industrial action or by the relevant federal government minister. The effect of this provision for workers in education, health and the fire services, is that the government can move to revoke access to protected action, greatly reducing their ability to win decent agreements.

The government has also identified the vehicle manufacturing industry — in which the use by employers of “just in time” work practices means industrial action at a single components manufacturer can bring the entire industry to a immediate halt — as a key target for the legislation.

Furthermore, any industrial action that affects parties not directly involved in the dispute will not be considered protected action.

In his speech introducing the legislation to parliament, Andrews made it clear that this section of the legislation is aimed directly at blocking the use of pattern bargaining. However, its effect would be much greater, as any picket line that involved workers not directly involved in the dispute would also lose its protected action status.

The legislation would mean that establishing a community protest line such as at Morris McMahon in Sydney earlier this year would open workers and their unions to AIRC fines and civil suits by the employer.

Labor and the Greens have stated they are opposed to the legislation, and the Democrats have indicated they do not support some provisions in the Better Bargaining Bill.

Originally published in Green Left Weekly #562

Read more...

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.

Senate
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.

Democrats
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

Read more...