Labor's IR cop threatens another unionist with jail

By Nick Everett

On May 15, Ark Tribe, a rank-and-file member of the South Australia branch of the Construction, Forestry, Mining and Energy Union (CFMEU) construction division, became the second person to be charged by the Australian Building and Construction Commission (ABCC) for refusing to attend an interview. Charges against Victorian CFMEU construction division senior vice-president Noel Washington, also charged for refusing to be interviewed by the ABCC, were dropped on November 26, six days before he was due to face trial.

Ark was summonsed to an interview with the ABCC in Adelaide last October in relation to a dispute about health and safety at a Flinders University construction site. Tribe organised a petition — on a paper hand towel — requesting a safety committee be established, with the union’s involvement, after the contractor, Hindmarsh Constructions, refused entry to the site by a CFMEU organiser and locked its workers out for a day on May 31 last year. Hindmarsh Constructions management refused to accept the workers’ petition.

However, following prohibition notices being issued by Safe Work SA on June 2, safety problems were fixed on the site and work resumed as normal. After the dispute had been resolved, ABCC inspectors visited the site. While the CFMEU alleges that the employer was never questioned about the safety issues, Tribe was summonsed for questioning by the ABCC and subsequently charged for failing to appear at the interview at the appointed time.

On June 9, Tribe attended the Elizabeth Magistrates Court. He was cheered outside the court by 200 supportive construction workers. After a five-minute mention, his case was deferred for a further hearing on August 11. Speaking outside court, South Australian CFMEU construction division secretary Martin O’Malley told the assembled workers, “You can kill people on building sites, bosses kill people left, right and centre, yet the best that can happen to them is they get fined. A worker doesn’t turn up to a hearing and they get jailed for six months.”

Commenting on the ABCC’s failure to stem the high number of deaths on Australian construction sites, ACTU secretary Jeff Lawrence told the media on June 3: “More than 40 workers have died on construction sites in the past year ... Every one of these deaths is a tragedy that affects families, friends, workmates and the whole community. The high level of deaths and injuries in the construction industry is a national disgrace and yet safety standards have got worse in the period the [ABCC] has operated. In the four years since the Howard government set it up to pursue an anti-union political agenda, the ABCC has failed to adequately deal with employers who break the law or cut corners on safety.”

ACTU’s pleas rebuffed

Calling on the Rudd Labor government to abandon its plans to retain a separate inspectorate for building workers within Labor’s Fair Work Australia (FWA) industrial relations “umpire”, Lawrence said: “No group of workers should be subject to discriminatory laws and coercive interrogation powers have no role in industrial relations in a modern democracy.” But the ACTU’s pleas for the abolition of the ABCC’s powers have been firmly rebuffed by workplace relations minister Julia Gillard and PM Kevin Rudd. Addressing the ACTU congress in Brisbane on June 3, Gillard told the 500 delegates — most of whom were wearing yellow campaign T-shirts calling for the abolition of the ABCC — that they should be “pounding the pavements” in support of the Fair Work Act and forget about getting anything more out of the Labor government. Gillard then proceeded to attack sacked construction workers from the West Gate Bridge dispute in Melbourne for alleged violence and damage to property, accusing some of wearing balaclavas. The workers are currently the subject of an investigation by the ABCC, but to date none have been charged with any crime.

On June 9, Rudd told Sky News, “I meant what I said prior to the last election and I said about the future of the ABCC that it would continue and that there would be a replacement body by 2010”. Joining the employers’ attack on the CFMEU, Rudd said: “You’d have to be Blind Freddy not to conclude that there have been historical problems, most particularly in the Victoria and West Australian divisions of the construction division of the CFMEU.”

On June 17 Gillard introduced the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill into parliament. The bill will transfer the coercive powers given to the ABCC by the Howard Coalition government to a new inspectorate established within the FWA. The bill provides for a six-month jail sentence as the penalty for failing to submit to an “examination notice” issued by the inspectorate (the same penalty imposed for breaches of the Howard-era legislation). Examination notices issued by the FWA can compel workers or union officials to provide documents, attend interrogations and answer questions and take an oath of affirmation if required to do so. The new legislation allows a court to impose a fine of $3300 for individuals (or five times that for incorporated bodies) in addition to, or instead of, a jail sentence for breaches of the legislation. From February 1 next year, a worker interrogated under the inspectorate’s coercive powers will have the right to be accompanied by a legal representative.

However, not everyone within the ACTU leadership were calling for the immediate abolition of the ABCC’s coercive powers. Joe de Bruyn, right-wing national secretary of the Shop Distributive and Allied Employees Association and a member of the ACTU executive, told the June 10 Australian that he would not commit to supporting a motion at the ALP’s July national conference demanding the powers be scrapped immediately. “Our position is very clear”, Bruyn said. “There should be one law for all workers, but the government doesn’t have a mandate for that in its current term of office because it didn’t say that to the people of Australia when it went to the polls. I think, long term, the government should do something different. But I don’t expect they will change their view in the current term of office. Everything that was in its industrial relations platform is part of its mandate. There can be no argument about that.”

Already a succession of cabinet ministers, including former ACTU presidents Martin Ferguson and Simon Crean, have rejected the call for the ABCC’s coercive powers to be abolished. While former Australian Manufacturing Workers Union national secretary, and now ALP senator, Doug Cameron, attempted to amend the bill, his proposed amendments — rejected by the ALP’s federal parliamentary caucus — simply tried to soften the coercive powers of the new building industry inspectorate.

No serious campaign

The problem confronted by the ACTU — and now readily exploited by the ALP’s parliamentary leaders — is that it failed to wage any serious campaign against the ABCC and its powers during the federal election campaign in 2007. Instead the ACTU uncritically endorsed the ALP’s “Fair Work Australia” policy and campaigned for the ALP’s election.

Last July, Victorian Trades Hall Council secretary Brian Boyd told The Australian: “After 2010, you don’t want a mutated form of the ABCC plus a half-baked substantive IR bill that doesn’t allow for genuine bargaining. That will mean unfinished business from 2010 and beyond. There is no way known the union movement’s going to accept that.” But a year on, the ACTU has hailed the new Fair Work laws starting on July 1 as “a major step forward for workers”, despite their tight restrictions on workers’ right to organise. And the building industry unions’ “Rights on Site” campaign for the abolition of the ABCC, launched on August 25, has so far included only one national day of action (on Washington’s scheduled trial date on December 2 last year) and some TV advertisements.

Boyd told The Australian that unions would push for a motion at the ALP’s July national conference to scrap the ABCC. According to The Australian, Boyd “said unions would seek to ensure the motion contained a clause saying the policy had to be implemented at the next election and could not be changed by the government. He said unions remained unhappy that Labor’s last policy platform was changed by the ALP in the lead-up to the election after pressure from the employers.”

The union bureaucracy of course made it easy for the Labor politicians to do this because the ACTU’s 2005-07 Your Rights at Work campaign — beginning with a series of stage-managed rallies and ending with a marginal seats campaign — was directed at getting rid of Work Choices via the election of a Labor government. The campaign effectively handed a blank cheque to Labor. As Victorian Electrical Trades Union state secretary Dean Mighell wrote in an opinion piece in The Australian in June last year, “Rudd and Julia Gillard have really done nothing more than re-decorate the Work Choices bus. It has a fresh coat of paint and new tyres, but it’s still essentially the same vehicle John Howard drove… Unfair bargaining laws are entirely intact and building-industry workers are still subjected to laws that fail the most basic of human rights and International Labour Organisation conventions … Workers perceive bad laws under a Howard government as bad laws under the Rudd Government. Rudd has retained 95 per cent of Work Choices which makes the laws Rudd’s, not Howard’s.”

The idea that simply getting the scrapping of the coercive powers of the FWA into ALP policy will compel the Rudd government to do so is a pipedream. At its 1977 national conference in Perth, the ALP adopted a policy opposing the mining, processing and export of uranium. But the Hawke Labor government, elected in March 1983, simply ignored the policy and then had it overturned by the party’s 1984 national conference.

If the coercive powers of the FWA building industry inspectorate are to be abolished, and impediments to the right to organise and to strike removed, unions will need to conduct a campaign involving mass protest actions, including industry-wide strikes that can disrupt business as usual for the employers. A campaign of this kind is not unprecedented in Australia. On May 19, 1969 Victorian tramway workers union secretary Carrie O’Shea was jailed in Melbourne’s Pentridge prison for refusing to obey a court order that his union pay $8100 in fines under the penal sections of the Conciliation and Arbitration Act.

Six days later, O’Shea walked out of prison a free man after a massive industrial campaign demanding his release — including two 24-hour general strikes in Victoria within the previous week and statewide general strikes in Queensland, Western Australia and South Australia. Altogether, at least one million workers took strike action. The penal provisions, introduced by the Menzies government in 1956, were rendered a dead letter and subsequently repealed by the Fraser government.

[Nick Everett is a member of the Revolutionary Socialist Party and an executive committee member of the Western Australian Civil Service Association.]