The Australian Building and Construction Commission was abolished in the Senate last Wednesday. It was set up in 2005 by the Howard government to curb claims of lawlessness and coercion on construction sites. Those adjectives conjure up iron bars, but the ABCC was authorised only to ensure industrial law. Violence and other criminal activities have always been matters for the police.
So how many prosecutions did the commission instigate during the six-and-a-half years of its existence? What type of offences led to those prosecutions and what was the total amount of the fines imposed for breaches of the regulations?
But these figures, provided by the commission in June, 2010, reveal that during the first four-and-a-half years of the ABCC’s operations it summonsed 197 people to its mandatory inquiries. They included construction industry executives and union officials, but two thirds of those examined were construction industry employees.
The inquiries led to 106 prosecutions mainly against unions and their officials. Fifty two succeeded, eight failed, seven were dismissed and 39 were still before the courts in June, 2010. The 67 successful prosecutions resulted in fines, mostly imposed on the CFMEU and its officials, totalling $2,114,900.
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The CFMEU’s Dave Noonan is currently overseas. But in an email last Friday he estimated that the total amount imposed on his union alone during the ABCC’s lifespan would be “in excess of $2 million”.
It has been suggested that the ABCC was set up by conservative forces to emasculate the unions by the imposition of crippling fines. Yet Labor’s Julia Gillard, as both Prime Minister and previously as workplace relations minister, has endorsed calls for “a tough cop on the beat” to stamp out alleged lawlessness and coercion in the construction industry.
In line with the ABCC’s definition of “lawlessness”, CFMEU member and rigger Art Tribe was prosecuted in the criminal division of the Federal Court for failing to attend an ABCC inquiry at which he would have been obliged to report on who, among his union representatives and workmates, had spoken up at a 2008 union meeting about health and safety. As a result of failing to front at the inquiry, Tribe faced six months imprisonment. The threat of the slammer hung over him and his family for over two years until the case was eventually dismissed in the Federal Court on a technicality.
Under ABCC regulations it became a breach of industrial law for union officials to set foot on a building site without prior application to construction authorities. Union meetings on site were prohibited unless related to an urgent health-and-safety concern. Any verbal attempt by a unionist to recruit a new member was regarded as intimidation and coercion. Yet the construction industry is arguably the most dangerous in the workplace and unions argue that non-union labour includes untrained backpackers who are apt to cut corners and put not only themselves, but workmates, at risk.
Meanwhile, research online does suggest that the ABCC, under the relatively new management of Leigh Johns, has pursued more cases against employers, particularly in respect to “sham contracting”, which involves cutting costs by relegating an employee to the status of “sub-contractor” and thus making that worker responsible, allegedly without adequate recompense, for his/her own sick leave, holiday pay, long-service leave and other employee entitlements.
Johns is expected to head Labor’s replacement Fair Work Inspectorate. But in an email dispatched to subscribers to the Rights on Site organisation, Noonan warns that the inspectorate will retain the power, although modified, to force building industry participants to answer all questions put to them at an inspectorate inquiry. The International Labour Organisation, as well as the Australian Greens, have pointed out that as a result of this power, members of the construction industry are denied the ancient legal right of silence — a right accorded to every other sector of the Australian workforce — and even to the suspects of the most dreadful violent crimes.
But bitter resentment also remains about the abolition of the ABCC, which many in the federal opposition regard as having vastly improved productivity on construction sites. According to Noonan, Tony Abbott has vowed to resurrect the commission if he gains power.
Meanwhile, the image of the union movement is being tarnished by ongoing speculation that the union dues of hospital cleaners and other low paid health workers have been spent on call girls.
CORRECTION: An original version of this story stated an ABCC media advisor could not provide up-to-date information until the Fair Work Inspectorate, which will replace the ABCC, is up and running. The ABCC informs us the reporter was directed to the latest information in annual reports.