The Guardian 28 June, 2006
Double whammy for building workers
When the Howard Government uses words such as "fair", "simple" or "better" it is enough to make any honest person cringe. The title of the Building Industry Improvement ACT is no more honest than any of the other lying language of the WorkChoices legislation. This Act is designed to improve one thing only — the profitability of major building and construction industry corporations. For workers in the industry and their trade unions it is living hell. The Guardian spoke to Jack, a building worker, about the impact of this legislation along with that of WorkChoices in his industry.
"Other unions and the community in general don’t know that the Howard Government has actually introduced specific laws for my industry which aim to attack perhaps the most militant union in the industry — the CFMEU (Construction, Forestry, Mining and Energy Union).
"We got the ABCC (Australian Building and Construction Commission). It has taken some of the duties of the interim taskforce they set up during Cole Royal Commission — the multi-million dollar witch hunt into building unions.
"In West Australia we had a taskforce for several years under the Court Liberal Government until it was eliminated by a State Labor Government. It was a local taskforce with police powers. It looks like the Howard Government learnt from the WA experience because the Australian Building and Construction Commission has police powers, and people don’t know about it."
Jack pointed to some of the additional powers the ABCC has: "Construction workers can be forced to talk, to answer questions meaning that their right to silence has been lost.
"There is a minimum of six months mandatory imprisonment if a construction worker refuses to answer questions — say if you are called to one of those secretive courts set up by the ABCC and you refuse to answer a question or refuse to dob in one of your mates. If you refused to name who moved a motion or spoke out against safety conditions in a particular workplace, or somebody who backed up a motion at a meeting....
Dob in your mates
"They can ask you who said what at a trade union meeting. That is the purpose of that particular ABCC secret court. If you are called in you have to identify people, you have to dob in your mates."
The only grounds for not answering a question are if you do not remember or do not know.
"The process that we have seen so far is initially there is a letter or invitation. You receive a letter in which the ABCC invites you to attend an interview. It does not say that you have the right to bring a lawyer or your brother or sister or wife or husband into that particular interview.
"You are just invited. There is a special paragraph on the bottom in which it threatens you or at least it tells you that if you fail to attend the voluntary interview then you will be called in. If you then fail to attend, the powers of the ABCC kick in and you could be jailed."
So far eight people who have been summoned to appear in Victoria, NSW and Western Australia, and they’ve wanted to hear everything that was said at meetings. It’s a kangaroo court where they expect you to dob in your mates.
In West Australia the CFMEU sent in a lawyer to represent workers who had been called in. The lawyer was admitted to the first hearing with the first person. When the lawyer presented for the second hearing, representing a second person, he was told that he was not able to represent that person because he had already witnessed what had happened in the first instance!
Farcical approach
"If they kept that up it would deny workers legal representation. Can you imagine if they summon 100 people — you’ll need 100 lawyers. It has huge cost implications but also we don’t have many labour lawyers or even many lawyers trained in this particular Act to represent our members.
"It’s against human rights, it’s against the Constitution which really allows you to be represented and provides for right of silence. But in the particular cases here, these rights were not allowed", Jack said.
Shrouded in secrecy
The ABCC has not disclosed where it operates from. The union has not been able to find out where their HQ are located or how they work. They are very secretive in their methods of work. The only information that they have is the address where people have been summoned for questioning.
"We don’t know how they based their investigations, on which grounds. What we know is that every time there is a union meeting on a particular site the investigators of the ABCC visits the construction site. They carry secret microphones, they carry tape recorders and they can interview either workers, union officials or supervisors. They can summon any particular document in regards to a particular incident. If you are a supervisor you could be required to show your books, records, and your diary. This has also upset several supervisors.
"These people have police powers. The union has advised to treat them like coppers. The only thing you have to give is your name and address, and then you have to refer any questions to a union, to exercise your right for legal advice."
They have the powers to ask questions, workers do have the right to get legal advice, to go to the union and the union strongly recommends they do not talk to them.
"They always try to present themselves friendly to the workers and invite them for a cup of coffee. They record the interview so there is nothing off the record.
"Don’t say anything. Yes, give your name and address and request the questions to be put in writing and when they visit to talk say you want to have some legal advice."
Employer confusion
On the question of WorkChoices which came into operation in March this year, Jack noted that some workers were laid off in the first week. Some were dismissed by SMS (text message on mobile phone) or over the telephone. Some of the builders felt protected by law to do whatever they wanted.
But there was also a lot of confusion among the builders who did not know whether or not union officials still had access to the workplace.
The WorkChoices legislation overrides state industrial relations system which means that all union officials must give 24 hours notice to builders because they are all covered under the Corporations or WorkChoices legislation. All entities who are Pty companies are covered by the WorkChoices legislation. The only people currently not covered by this legislation are sole traders or partnerships who are not Pty companies.
That means that perhaps 80 per cent in the construction industry are covered by WorkChoices. Union officials must give all Pty companies 24 hours notice in writing.
Make it hard for unions
"There are some instances in which there is a sort of relationship between a union official and a supervisor, or a builder and they have been able to establish guidelines or parameters which operate where a phone call will be enough to advise as a matter of respect that we are going to visit the site.
"The legislation is clear — unions must give a 24-hour notice.
"It has become a little bit difficult to have meetings with organisers from the union. Meetings are to be held during meal breaks — that means 10 minutes or seven minutes during a smoko, and half an hour during the lunch break.
"The construction industry is so versatile. Some subcontractors prefer to have one break at 11 o’clock for half an hour or an hour. Some do not have lunch, they go home earlier.
"It makes the organising for our officials very difficult.
"In a seven-minute break, when we have been there since 6 o’clock in the morning the only thing most of us are interested in is to have a little bit of a rest and straight back to work again.
"And of course that is one of the main intentions of WorkChoices legislation, prevent the union from having contact with us on site and do recruitment."
Workers, union officials and unions can now be sued for civil damages and one case could cost a union millions of dollars and see individual workers and union officials lose their homes, cars and other assets.
Collective agreements more difficult
It has also become more difficult to make collective agreements. In addition to the new hurdles to having contact with workers, unions cannot take legal industrial action without first requesting a secret ballot to be run by the Electoral Commission.
"In the building industry industrial action is illegal unless it is authorised by an employer which is laughable. If the union calls industrial action it faces heavy penalties, $33,000. If we take action to seek an improvement in our agreement, it is $22,000 dollars per day for individuals and $110,000 for the union — per day for industrial action. The smaller $33,000 dollars is if you call for a strike …
"There was an interesting case in WA recently. The union actually got fined $6000 and two of the officials got individual fines for allegedly encouraging industrial action to change a collective agreement which had already been registered. (This case is under appeal)
"One of the main findings is that the judge of appeal found that there is no difference between the union membership and the union body and that whatever decision the membership takes the union is responsible for it, even if the official was not present or recommended against it.
"Which was the case in that particular case — the union official advised the membership not to go on strike but they made their own decision thinking that they were actually independent of the union. The case is still in court and there is an appeal."
Recruitment affected
"The whole intention of this is to break the unions financially and make them to go broke. The ABCC is affecting recruitment in the first place as workers who join fear that they may be called in for an interview.
"Some people, particularly those who have been members of the union in the past, believe that they don’t need the union anymore, it is not compulsory to join the union. I think that the officials always start the meeting by saying that it is not compulsory and they say that we need you in the union because your rights are in danger.
"We find that there is a little bit of resistance at the moment, we have to counter it, perhaps by having every meeting at five or six o’clock in the morning before construction sites open, meeting construction workers in car parks, meeting construction workers after work or meeting them in a pub or meeting them at home or by telephone conversations.
"However, I think we need to be very careful with telephone conversations because union officials believe their phones have been tapped, as it was the case of a shop steward office in Victoria in which the union found several bugs". Workers fear the ABCC inspectors, they are very ugly.
"We know that the Howard Government has spent a multi-million-dollar budget on these people. There are probably 32 inspectors Australia-wide, but we don’t really know because they act in a secretive way. There are a couple of women working in WA, there is a particular one who presents herself as a very nice, sweet person trying to win the trust of workers.
"They are all ex-Federal police. We don’t trust police."
Jack compared the ABCC to an underground organisation. In the legislation there is a requirement that they have to identify themselves, but Jack said, some of them choose not to.