The extraordinary case of construction worker Ark Tribe returned to the Criminal Division of the South Australian Magistrates’ Court today. He is accused of failing to attend an inquiry convened by the Australian Building and Construction Commission (ABCC).  If convicted Tribe, a rigger, faces a six-month prison sentence.

The case got under way on Tuesday. A three-day hearing was scheduled. But Tribe’s barrister, Michael Abbott, QC, was soon on his feet to ask for the matter to be thrown out. He contended that His Honour, Magistrate David Whittle, had no jurisdiction in the matter since it had been instituted improperly.

He is reported to have explained that proceedings against Tribe had been brought by an employee of the ABCC, whereas under federal law only the ABCC Commissioner John Lloyd himself, or his duly authorised delegate, could lay charges against building and construction workers.  Although prosecuting counsel, Brind Woinarski, QC, is said to have conceded that point, he argued that the case should proceed.

The matter was then adjourned while these arguments were considered.

Yet, whatever decision the court hands down today as to whether or not the case goes ahead, the controversial legislation that has led to all this drama and expense remains in place. It may well prompt similar prosecutions.

Here is some background: The ABCC was established by the Howard government in 2005. It was set up in the wake of the Cole Commission’s findings of widespread violence and intimidation in the building industry. The ABCC was consequently invested with the power to prohibit any union activity on building sites and to compel construction industry participants to attend its inquiries and answer any questions put to them during the proceedings.

Tribe failed to appear at ABCC inquiry in 2008. It was convened following an allegedly illegal union meeting he had attended in May, 2008 while working on a construction site at Adelaide’s Flinders University. According to the CFMEU that meeting, which led to a brief strike by 30 workers, was called in response to workers’ complaints that their employer, Hindmarsh Constructions, had failed to address their health and safety concerns.

Yet, a year later later, when the matter of that industrial action came before the Federal Magistrates Court in Adelaide, the CFMEU conceded that the strike had gone ahead despite the fact that a representative of SafeWork SA had not found the workers’ safety concerns urgent. It was also revealed, however, that the union official who had called the strike, Justin Feenan, had pursued the workers’ complaints. The upshot was that within a couple of working days SafeWork SA did order Hindmarsh Constructions to take action in response to workers’ concerns about scaffolding and other matters on site.

Then in April this year came the news — as seemingly unlikely as the finale of any comic opera — that the ABCC and the CFMEU had  advised the court that they would like to settle the matter. The terms they agreed to included fines and admissions of breaches of ABCC regulations by the CFMEU and Justin Feenan.

Yesterday, a spokeswoman for the ABCC confirmed that the parties had suggested to the court that it would be appropriate for the CFMEU to be fined $17,000 and Justin Feenan $3000. On April 13 the court reserved its decision about these proposed terms of settlement. A decision is still pending.

Meanwhile, over the past couple of years, Tribe, 47, and his family have had to cope with the stress of  the preliminary hearings into the separate charges against him — and the possibility that he might end up in jail.

He was one of more than 30 workers who attended the union meeting in question. He has said he failed to attend the subsequent ABCC inquiry on principle, because he believes that workers should have the right to take industrial action.

What is still not known is this: was anyone else who attended that union meeting summoned to an ABCC inquiry? An ABCC spokeswoman advised yesterday that she could not respond to this query while the matter is still before the court.

But why, you may wonder, hasn’t the situation of Tribe and his family been referred to by those relentless champions of “working families”, Kevin Rudd and Julia Gillard — especially at a time when the Labor Party is warning of the return of WorkChoices and a right-wing government intent on demonising and emasculating the unions?

After all, in the lead up to the 2007 election, the Labor Party did promise to replace the ABCC with a Fair Work Inspectorate. The first move of workplace relations minister Gillard was to commission a former chief justice of the Industrial Relations Court, Murray Wilcox, to advise her on the formation of the replacement inspectorate. But then she outraged unionists last year when she announced in parliament that although lawlessness in the construction industry had improved, Wilcox had recommended the retention of a “strong cop on the beat.” Consequently, she explained, the proposed Fair Work Inspectorate would retain the ABCC’s powers of compulsion, although with these proposed restraining amendments:

  • No compulsory interrogation of building industry participants by the Fair Work Inspectorate will be permitted without the approval of a presidential member of the Administrative Appeals Tribunal.
  • The Commonwealth Ombudsman will be asked to review all of the inspectorate’s compulsory interviews and report to parliament on the exercise of the inspectorate’s powers.
  • Anyone obliged to attend a Fair Work Inspectorate interview will be permitted to be represented by a lawyer of their own choice and to claim reimbursement for reasonable expenses.

In the Senate in February Western Australian Liberal Senator Chris Back condemned any attempt to “water down” the ABCC, which, he said, had been responsible for reducing the number of days of productivity lost as a result of union activity  from 550,000 in 2004 to zero in 2007.

Gillard’s proposals were supported by the Greens, although Greens Senator Rachel Siewert described them as an “inadequate compromise” and in breach of Australia’s obligation to observe international labour organisation rules about the rights of workers. She likened the ABCC to a “star chamber” and  complained of  “… an assumption that individual workers in the building industry are inherently bad, cannot be trusted, have no integrity and en masse deserve to be considered criminals for sticking up for the mates. This is a belief that the ALP government and the opposition share.”

Siewert went on to announce in the Senate that the Greens will continue to press for more amendments to ensure that the building industry is regulated in the same way as other industries and in a manner that “balances the needs of productivity and the economy with the health, safety and democratic rights of workers”.

In the wake of her speech, the Victorian secretary of the CFMEU, Bill Oliver, called on construction workers to vote for the Greens in the Senate at the forthcoming federal election. Then, on April 29, the CFMEU president Dave Noonan advised media the union has no plans to donate to the Labor Party this year. The Australian quoted him as saying: “It’s highly unlikely that we’ll be putting a major effort into having a government elected that retains laws that treat our members differently to other Australians.”

That news must have worried Labor even then, back in April, long before the eruption of controversy about the resource super profits tax. There may be more condemnation of the government as a result of the prosecution of Ark Tribe.

Julia Gillard has suggested that although things have improved, violence and intimidation continues in the construction industry. But the Greens argue that if that is the case, it is a matter for the police. Senator Siewert has also complained that the construction workers are being denied one of the most basic human rights, the ancient right to silence.

Meanwhile, it does seem that construction workers remain in a no-win situation. They risk jail if they don’t comply with ABCC orders and they are likely to risk at least ostracism if they do comply with an ABCC order and are forced, in the process, to dob in their mates.

In any event, perhaps the Tribe case will lead to more debate about the advisability of banning union meetings on construction sites, especially in the wake of the insulation batts tragedies and ongoing concerns about the number of deaths and accidents in the workplace. About 50 deaths a year are reported to occur on construction sites.

The ABCC will continue to operate pending its replacement by the proposed Fair Work Inspectorate.

Peter Fray

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