It’s not only the new Australian Building and Construction Commission (ABCC) chief Leigh Johns who has some explaining to do, as Bernard Keane mused yesterday.

After announcing Johns’ appointment last week, the new workplace relations minister, Senator Chris Evans, went on to warn that although the government plans to replace John Howard’s ABCC with a new Fair Work Inspectorate, Labor will not tolerate “lawlessness and thuggery” on construction sites. The previous workplace relations minister, Julia Gillard, also talked of “lawlessness” on construction sites and the ongoing need for a “tough cop on the beat”.

This is language that conjures up iron bars. Yet, as unions have pointed out to the government, criminal behaviour on construction sites is a matter for the police. The ABCC is restricted to ensuring that construction industry participants observe the industrial law.

In a submission lodged in December 2008 with the Department of Employment, Education and Workplace Relations, a consortium of four unions, expressed disappointment that this distinction is often blurred for political reasons. Yet in an apparent dog whistle attempt to impress big business, Labor, as well as Opposition politicians, continue to use inflammatory, misleading language that, arguably, exacerbates industrial disputes.

The one and only breach of ABCC laws deemed to be criminal is the failure of a building industry participant to obey an ABCC directive to give information about a fellow industry participant, irrespective of whether he/she is a workmate, union official, employer or contractor. The penalty is six months in the slammer.

This regulation is in breach of International Labour Organisation rules about workers’ rights that Australia has ratified. Even so, Labor is committed to its retention by its proposed Fair Work Inspectorate. But the matter of the inspectorate has been stalled in the Senate by the Greens.

Greens Senator Rachel Siewert has protested that the right to remain silent is a right accorded to workers in all other sectors of the Australian workforce and that, even under criminal law, the right to silence is accorded to those accused of even the most heinous crimes.

Meanwhile, the cost of the seemingly endless inquiries into the construction industry continues to mount. In its 2008 submission, the consortium of unions estimated that since 2003 more than a quarter of a billion dollars had been spent on the Cole Royal Commission and the establishment and operations of the ABCC. This is claimed to be about 10 times more that the sum received during the same period by Cancer Australia and the Australian Law Reform Commission. The unions’ consortium estimated the cost of the ABCC’s operations this year at $148.3 million.

The unions went on to suggest that that some of the money allocated to the ABCC has been spent mendaciously in an attempt to portray unionists as thugs. In its 2008 submission the consortium cites a June 7, 2007, news story in the Sydney Daily Telegraph in which the then ABCC chief John Lloyd reportedly claimed a rogue union official had issued a death threat against ABCC inspectors. Lloyd was also reported to have claimed: “The unions are behind a threat to kill one of my people, it’s with the police now.”

Yet the unions report that on the day these allegations were published, the CFMEU sent a letter to the ABCC urgently seeking further information about the claim of a death threat. According to the consortium, that letter was ignored by the ABCC. Although a charge is said to have been later laid against a construction worker (not a union official), it was subsequently withdrawn. The ABCC is reported to have ignored a further letter from the CFMEU requesting the commission to correct the public record.

A couple of weeks ago, when John Lloyd was interviewed on his retirement on the the national broadcasters Stateline WA, it was reported that he had been spat at by a CFMEU official and that the addresses of ABCC inspectors had been posted on a building site. That sort of conduct is deplorable. Yet so far it has only been alleged that it occurred. Apparently no charges have been laid, let alone proved.

Bitterly divisive claims and counter claims are likely  to continue in the construction industry so long as the public remains largely unaware of the staggering costs involved.

Before we hear another claim of “thuggery”, it would be helpful if, during the imminent Senate Estimates Hearings, Senator Evans was asked to comment on union claims that although hundreds of allegations of criminal behavior were referred to the Cole Royal Commission, they resulted in only one conviction — and that involved an employer.

Cynics may argue that this was because of the reluctance of frightened witnesses to come forward and speak up. In any event, who would argue that this is a matter that also cries out for investigation by a robust team of interrogators and researchers on a public affairs program.

Meanwhile, it remains a fact that, on average, 50 workers die each year on building sites and many more are injured. Even so, unions complain that while crippling fines continue to be imposed on them and their officials, sometimes for the slightest breach of the current industrial laws, some employers continue with apparent impunity to underpay backpacker casuals and other untrained, inexperienced non-unionists who jeopardise the safety of other workers.

Peter Fray

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