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Issue #1649      July 30, 2014

Touch one, Touch all

Attack on unions underway

Imagine a large workplace with 600 workers but no direct employees. Where all the workers are employed by sub-contractors or body hire companies. Where there are no penalty rates for weekends, no holiday pay, no paid sick leave or rostered days off (RDOs). Where the gains of generations of workers and their trade unions, including health and safety, have been thrown out and union agreements have been replaced by non-union collective agreements or individual contracts.

Union members march in solidarity for jobs and local content in Perth.

And employers have all the flexibility they could dream of. This is happening right now, in the building and construction industry. At the same time the Abbott government is spending $100 million on a Royal Commission witch-hunt into trade unions and not a cent on employer corruption, intimidation, bullying and harassment of workers to cop such conditions if they want work.

The government released the text of its Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 on April 17. It has still to be passed by Parliament and then will only officially come into effect when Building and Construction Industry (Improving Productivity) Bill 2014 is passed and comes into force. It is presently stalled in the Senate.

The “Improving Productivity” bill sets out to strengthen the already draconian, anti-union powers of the notorious Australian Building and Construction Commission (ABCC): To return them to the Howard days.

“Improving Productivity” is spin for increasing profits and reducing labour and other related (eg health and safety measures) costs.

Employment Minister Eric Abetz claims the Code is “designed to restore the rule of law and fairness to Australia’s construction sector.” “Fair, productive and lawful building sites are critical to Australia’s competitiveness, and job creation potential,” Abetz said. The term “lawful” applies to trade unions and their compliance with repressive, anti-union legislation. “Competitiveness” and “job creation potential” are spin for lower labour costs, in particular wages.

“It is important that contractors that want to work on projects funded by the taxpayer have the ability to operate efficiently and flexibly to ensure projects are delivered on time and on budget,” Abetz continues.

Flexibility for employers is central to the Code, along with heightened exploitation of workers and deunionised building sites.

New building code

The Code seeks to prohibit long-standing practices and entitlements won over years of struggle. Any building company or contractor who wants to tender for or do work funded by the government will be required to adhere to the Code, not only on projects with government funding but on all of its private work as well. The legislation is backdated and will (if passed) apply to enterprise agreements made after April 24.

At present there are large construction companies with contracts for $600 million or $1 billion projects. They might directly employ 20 or 25 workers, but to avoid negotiating a union collective agreement, often keep them away from those projects. Tower crane crew or labourers and peggies are hired through labour hire instead to carry out the duties that otherwise their direct labour would carry out.

The building unions negotiate national, site or Greenfield agreements with major construction companies. The agreements also contain provisions regarding Right of Entry for union officials, offices and other facilities and the employment of full-time union delegates by the company. They often contain provisions requiring subcontractors and body hire outfits to adhere to them to avoid wage disparity or discrimination in the workplace.

This ensures that all workers on site are employed under the same agreement, have the same entitlements and cannot be pitted against each other in a race to the bottom.

Past gains wiped

The aim of the Code is to put an end to all the protections that trade unions have won, deunionise building sites and destroy the Construction Division of the CFMEU. Its provisions prohibit agreement clauses that:

  • Require contractors to employ a “non-working” shop steward or job delegate
  • “One in, all in” clauses where if one worker is offered overtime, all workers must be offered overtime
  • Specify that subcontractors must comply with the site or national agreement
  • Oblige contractors to consult with unions before engaging subcontractors
  • Give unions a say in redundancies and demobilisation or redeployment of workers, eg. “last on, first off”
  • Providing shop stewards with an area or office for their use
  • The right of entry except under the strictest of conditions that undermine union activity. The employer must not allow a breach of these conditions. At present some employers have less formal relations
  • Directly or indirectly encouraging union membership or other measures suggesting union membership is anything other than a matter of individual choice
  • Preference to union members
  • Employers doing anything that would have the same effect as a prohibited clause in an enterprise agreement. At present it is allowable to have agreements around other matters such as trade union training, income protection or conversion of sick leave
  • Hang union flags or posting of union posters or stickers in crib areas.

In addition employers will be required to report any threatened or actual unprotected industrial action. No more short actions, such as following the death of a worker – builders are currently required to report this. They must take steps or action to actually prevent or bring to an end any unprotected industrial action – such as commencing legal action in the Fair Work Commission or a court.

It virtually outlaws industrial action and “coercion” to obtain over award payments. The ABCC with its increased powers will police workers and trade unions, confirm new agreements comply. The only sin they can commit is not hit workers hard enough.

It should come as no surprise that employers are already on the offensive enforcing the Code, using the excuse that it is retrospective.

Labor’s Fair Work Act requires the inclusion of “individual flexibility clauses” ostensibly for the purpose of meeting the genuine needs of the employer and employees. These flexibility clauses are supposed to result in a worker being better off overall, but in reality, they are increasingly being used to rob building workers of their legal entitlements. The ABCC seems to have turned a blind eye to these illegal practices.

Individual contracts by another name

In one example, there are seven big contractors employing labour, all but one has a non-union collective agreement. In the name of flexibility, workers have lost their penalty rates for weekends, their holiday and sick pay and RDOs. They are pressured into signing individual agreements or take the road. But the boss makes the same or more profit.

This legislation will affect all workers. It is a sign of what is to come when the Abbott government guts the Fair Work Act.

According to public sector unions, civilian employees in the Defence Department will be offered only a 2.65 percent salary increase over the next three years – 0.8 percent per annum. This “increase” amounts to a reduction in real wages (CPI is around 3%) and is conditional on “productivity offsets”.

These “productivity offsets” include extending the working week by 30 minutes, two days cut from leave provisions, making it easier to sack staff and removal of a one percent bonus for satisfactory performance.

The Department of Human Services has offered 2.3 percent over three years.

Other departments can expect similar demands as workplace agreements expired in June across the public sector.


Catholic schools (under the guise of “flexibility”) have proposed an EBA that would cut conditions like sick leave, force teachers to work longer hours (reducing wages) and hurt students by scrapping restrictions on class sizes.

“Flexibility: the five syllable f-word that strikes fear into the hearts of every worker!” said Independent Education Union secretary John Quessy as Catholic school teachers took strike action for the first time in a decade on Tuesday last week.

Readers are urged to lobby their MPs and Senators as well as the Palmer United Party and independent Senators. The new ABCC legislation and the Code must be blocked in the Senate and public servants supported in their struggle to protect jobs and conditions.

Next article – Public food safety is important

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