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Issue #1722      March 9, 2016

Strength in the union

The CFMEU has been and still is on the receiving end of much of the Coalition’s and the corporate media’s war on unions. The recent royal witch hunt into trade unions (aka Heydon Royal Commission) devoted a great deal of time and taxpayers’ money to come up with very little of substance. Rita Mallia is the president of the NSW branch of the Construction Division of the CFMEU in NSW. She spoke with Anna Pha from the Guardian.

Rita Mallia. (Photo: Anna Pha)

Anna Pha: The building industry is pretty much a male dominated industry. So how did you come to be an official of the CFMEU?

Rita Mallia: I started with the CFMEU almost 20 years ago as the workers’ compensation officer. I have a law degree. I joined the branch in October 1996. John Howard had come to power in March 1996. So I guess we were already in battle mode by that stage. So my job then was to take care of workers who were members who had been injured at work with their workers’ comp.

The workers’ comp system is pretty bad now. But in those days the benefits were not so bad but the system was terrible. You had to chase cheques, insurance companies didn’t pay people for weeks. Employers just wiped their hands of an injured person pretty much from the first minute they became injured.

So there was a lot of work. The office was a bit like a doctor’s surgery. There were workers lined up pretty much to see me every day. It was a pretty much full on position.

And from there I developed into the role of industrial officer, became the senior legal officer in about 2000 or 2001. And then worked leading the branch’s legal work in an industrial sense and through the first of the Royal Commission that I was involved with – the Cole Royal Commission. Then ultimately I was appointed as the president in 2011, and then elected in my own right in 2012.

It’s a privilege to work for building workers. After all they did build the country and it’s a fascinating industry. And it’s an industry where there is a lot of exploitation, so there is a great need for a union.

We are pretty much a grassroots rank and file organisation. So it’s all about the members at the end of the day.

AP: Do you find that they accept a woman in that position?

RM: I’ve never had an issue with our members in terms of my gender. I think they appreciate the good work that the union does. They expect you to be fighting for their interests.

In all those years I’ve not had that issue which is good because I know that there is a lot of harassment, sexual harassment, and we’ve dealt with those complaints on site. Women on site are often treated very poorly. There is a macho culture which needs to be broken down.

I think it’s breaking down in the sense that there are now a lot more white-collar women on sites – architects, engineers, safety officers, project managers. We see a small number of women enter the trades and in traffic control and a lot of women in cleaning.

It can still be a very isolating job for a woman on a building site and incidents do occur which need to be followed up. We have done a fair number of discrimination and harassment type cases as well.

AP: Can you summarise what the current Fair Work Building Commission (FWBC) [Labor’s version of the Australian Building and Construction Commisson (ABCC)] does and its powers?

RM: The original Act [under Howard] and the current situation are very similar. They are almost a police force for the industry. They can turn up on site, they can audit companies.

They basically are supposed to be enforcing either the Fair Work Act, or what was then the Workplace Relations Act in the original format, for breaches of that legislation. They basically spend all their time starting prosecuting cases against the unions, particularly the CFMEU.

You will have heard comments from our national secretary, they almost solely focused on the activities of the union. They don’t really care about, don’t see it as their responsibility, to deal with the non-compliance by employers, either in safety or non-payment of wages.

I think they are ultimately there to intimidate workers not to participate in their union because people get threatened about prosecutions all the time by the Fair Work Building Commission [FWBC]. There was a change to the legislation under the Labor government but its powers are almost exactly the same.

They just spend their time trying to put together cases against the union and I think ultimately to prevent workers from having a union that is effective by limiting the capacity of unions to go about representing our members.

I think it is part of this right-wing agenda to damage and destroy the labour movement and to use the legal system to do that.

AP: Can you give a couple of examples of where they have actually taken union officials and workers to court?

RM: The legislative regime in this country does not support people exercising rights at work, either the right to strike, or to have ready access to their union representative. It is very technical, very easy for union officials to find themselves on the wrong side of prosecution because of the technicalities of the legislation.

We’re not going to let technicalities prevent us from dealing with a safety issue or representing our members’ interests if they have lost money. So there have been a number of cases where they have brought applications which have resulted in [right of entry] permits being revoked or permits having conditions on them.

Commission one-sided

Generally those cases arise out of safety issues. For example, one of the cases being brought currently against us arose in the context of us raising some issues in Western Sydney where we exposed the exploitation of foreign workers. So rather than dealing with the issue of foreign workers, the FWBC sought to prosecute the secretary and the assistant secretary for breaches of the Fair Work Act.

We’ve got a prosecution against us arising out of taking protected action in our victory against Boral in getting a really good enterprise agreement up on behalf of a concreting company.

They are just constant. It’s a very right-wing political agenda to use the law to monster unions and workers and delegates away from being active and vocal in the workplace.

Compulsory interrogations

You also have the very famous case of Ark Tribe who worked on a building site in South Australia. He was involved in negotiations around a safety issue. The safety issue was resolved and lo and behold he was called in, for what is another part of their powers, for compulsory interrogations.

He refused to have a compulsory interrogation and give up his workmates and union officials who had participated in the meetings which gave rise to the resolution of the safety dispute.

He was prosecuted and threatened with six months jail if he did not comply with that request. That case was ultimately thrown out in court because the body had exceeded its powers in terms of the notice that it had issued.

It’s not the best use of taxpayers’ money but I think part of their agenda is to keep us tied up in the courts as best they can.

Criminalising union activity

Then there has been use of the criminal law. For example, they brought a case against one of our officials, for breach of the Commonwealth Crimes Act, claiming he had interfered with an officer of the Commonwealth being a Fair Work Inspector, alleging intimidation. We recently won that case. The magistrate threw that case out finding that there was no intimidation.

We’ve got two officials in Victoria who are being prosecuted for blackmail in the context of representing their members.

Industrial disputes and their consequences have been dealt mostly as civil matters. But the idea now that you can be representing a group of workers achieve a result for them, as John Lomax did, in the ACT, and be accused of trying to blackmail an employer into taking on an enterprise agreement is farcical and dangerous.

It’s really serious that they are trying now to criminalise what is very legitimate trade union business.

So that’s a concern for all unions that really has a much broader impact. There is a lot happening in the law in this area, which is being used to fundamentally attack workers’ rights and entitlements and the very existence of the trade union movement.

AP: Have you any idea how much the union has paid in fines in the past few years?

RM: It’s a significant amount of money. When our officials are out there fighting the fight for workers and are on the receiving end of these prosecutions, solely for doing their job, then sometimes you’ve got to pay the fine that comes with that.

The alternative is to do nothing, sit on your hands, and leave workers exposed to poor safety and exploitation. Death and fatalities occur weekly in our industry.

There was a massive crane collapse in Sydney on Saturday [February 27]. It is lucky nobody was killed. There was a crane that was on fire in Melbourne. Lucky nobody was killed.

Our focus is on the trade union fighting very hard to get better safety and better regulation in the industry, particularly around the issue of safety but also around the issue of compliance.

Employer intimidation

There are hundreds of millions of dollars that haven’t been paid in superannuation across the country is the vast majority of it is not paid in the building industry.

People who are relying on their superannuation for some sort of dignified retirement are not receiving their entitlements. The Australian Taxation Office does not enforce these conditions.

There’s a lot of non-compliance and exploitation of workers across-the-board in this industry but the authorities seem less interested in that and more interested in cutting us off at the knees.

Certainly there is a feeling of intimidation and uncertainty on sites inhibiting workers from speaking up. They are worried about being accused of breaching the law if they raise an issue of safety or of being caught up in some prosecution.

Workers are discouraged to stand up and take a stand on safety. The FWBC reinforces the master-servant type of relationship where employees do not in practice have a right to be heard, even though all the rhetoric would suggest they have such rights.

Workers do worry about losing their jobs in an industry that is very cyclical and transient. It’s very easy for employers to get rid of people they perceive as troublemakers. Its difficult to prove someone is being discriminated against because they raised an issue of safety or brought the union in.

So it’s a really difficult position to put employees in which is why we fight so hard against this regime even though sometimes it costs us.

AP: The ABCC legislation that the Turnbull government is possibly going to use for a double dissolution, does it just restore the old ABCC or are there extra nasties in it?

RM: They want to shore up the capacity of the ABCC’s powers to undertake compulsory interrogations and increase penalties.

It is one of the issues of concern amongst many of the crossbenchers that a person can be hauled in and asked questions with limited access to legal representation. In an industrial relations context this is overkill and nothing more than a tool for intimidation by the state.

You’re not dealing with espionage or international security. These are workers on site dealing with the day-to-day realities of the industry.

AP: The media certainly portrayed a picture of corruption and bikie gangs almost daily during the Royal Commission with the most disgusting headlines. What has actually come out of all of that?

RM: Firstly there were two CFMEU officials who were exposed as doing the wrong thing and they have been dealt with. They have been expelled from the union to the extent that they were using their position to improve their personal interests.

There were no allegations of governance problems in our union in terms of use of members’ money. All the criticism of the CFMEU across the country really is about its dealings with people in the industry and our militancy on behalf of our members.

At the end of the day, we will deal with employers that employ our members. We are not ASIC, we don’t register people who have these companies in the industry, we are not the builder who engaged these people as subcontractors.

To the extent they represent building workers, those workers are our members, we have to represent their interests. The evidence about some of our officials portrayed them in such a way as to make them look as bad as possible without consideration of the considerable evidence to the contrary. The other side of the story was the work that those officials in NSW had done to recover millions of dollars of unpaid entitlements which went to those workers. We put the evidence up, it was largely ignored.

It just shows how one-sided the Royal Commission was and they were intent on portraying all of our officials who work in a very difficult industry, sometimes having to deal with unsavoury characters. But we don’t invite them into the industry.

Vilification of unions

The Commission and the right-wing press used that as a great way to paint the union in a poor light. Workers on building sites know that’s not the case. I don’t think the general public really accepted that was the whole of the CFMEU in that sense.

If you put an $80 million Royal Commission into the banking sector I’m sure you would find many people who have been doing the wrong thing. There is plenty of evidence of banks ripping off their customers to the tune of millions of dollars, but it’s not in the interest of the Federal Government’s mates to shine a light on that.

The political climate in which we find ourselves is where unions are portrayed in the worst possible light. We’ve got to counter that by showing the real issues that exist in the industry and to continue to fight for our members.

AP: Can you comment briefly on the recommendations that come out of the Royal Commission?

RM: Some are referrals, some are suggestions around legislative change. The big thing is this idea that union officials should somehow be held to the standard of a publicly listed corporation.

That just seems unworkable and overblown. I think there are some lessons to be learned from some of the case studies about unions having good governance, being transparent in their processes, having members involved in the decision-making of the union.

These are all features of the CFMEU currently, so we have no fear of any of those sorts of recommendations around governance.

But the idea that there should be massive fines and somehow we are the same as a publicly listed corporation is ludicrous especially as, in a union like ours driven, it is run by the rank and file members. I’m a full-time union official but it is the committee of management that I’m answerable to – it is 26 building workers and a state council made up of another 30 or so workers.

They are not directors, they don’t get paid for what they do for the union. They are committed to the industry representing their fellow building workers. The idea that they should be given exposure to the same penalties as a director who is being paid $250,000 or $300,000 or $500,000 or million of dollars a year on a corporate board is ridiculous.

Again it’s all part of this agenda to attack the labour movement.

AP: I believe there is a recommendation that unions not be permitted to pay the fines of individual workers or union officials.

RM: If people are doing their job, then their organisation should be able to indemnify them for doing a job. If such a proposal was adopted its just another way of providing a disincentive, for people to stand up and be workplace representatives, on the boards or committees of their union or union officials.

Who’s going to stand on a board or a committee – often held in an honorary capacity – if you might be stuck with having to pay these large fines for infractions that sometimes amount to nothing more than the equivalent of jaywalking.

This all goes to the very heart of the right to freedom of association. The International Labour Organisation has found that the ABCC laws breach international conventions regarding freedom of association and trade union rights.

It is just all about making it very hard and scary for people to actively participate in their union.

AP: One last question, can you comment on the attack on industry superannuation funds?

RM: I’m director on CBUS industry superannuation fund*. It is in the top 10 of super funds – that is industry and retail funds in terms of the return on the investment of members.

We manage nearly $30 billion of members’ money and as a director who is an employee representative nominated by the CFMEU, I take that job very seriously. To think that, just because I am a union official, I am discounted from having that role is really appalling because we all take our role very seriously.

But the other thing is industry super funds have been shown time and time again to be far better managed, and deliver far better returns plus insurance and services to their members than any of the retail funds. So basically, again it is another example of the ideological war being waged for no good end.

At least when some of this legislation was brought up to the Parliament recently, the crossbenchers saw it for what it was for. You had people like Glenn Lazarus saying there is nothing broken with the system to the extent that there needs to be reforms.

Industry funds are very transparent with their members. We, for example, have an annual members’ meeting, members themselves have their representatives on the boards of these organisations that are charged with investing and looking after their retirement income.

So workers have a direct voice on these boards. It a really effective model and the proof is there in constant good performance. The changes are not about improving the system. They are about giving access to that pool of money to the retail sector and banks. A prospect that is appalling.

Attack on workers’ super

They want to get rid of the default status where an award or enterprise agreement can specify a fund. When under Howard they introduced the choice idea, people gravitated to industry funds, not away from them. There’s no economic legitimate basis for these attacks.

So that’s why we’ve been very strident in supporting the current model which was fought for by workers, particularly by building workers. Ultimately Labor put in place the legal structure. The funds belong to workers.

The Liberal Party have never supported superannuation. The plan by Labor previously to increase the compulsory contribution is frozen because all the evidence is that 9.5 percent is insufficient to give people a dignified retirement.

If that is the model for providing people with some security in their retirement then it should be supported, not destroyed or conditions deteriorated.

It is just another part of the agenda to get unions off boards to reduce union influence.

Continue to fight

It’s extraordinary. The attack is on so many fronts, it’s not just unions – the attack on Medicare, on refugees, the under-privileged. On the one hand, the Federal and State Governments’ rhetoric in support women who are victims of domestic violence and then cutting funding of refuge and other services.

Unless you’re a big corporate with a lot of money, you can’t rely on the government to support you and your family; in difficult circumstances that you might face, or to get a better education and decent health services or a fair workplace.

I think it’s a really sad indictment on where we’ve come as a country, which is so prosperous and such a lovely place to live.

Hopefully things will swing back. Concern about the increase in the GST, the attacks to Medicare, real bread and butter issues, might wake those so far disengaged with the politics. If the conservatives succeed it will fundamentally change the nature of our country. It will be a meaner place.

The CFMEU will continue its fight on behalf of its members. We are not going to resile from our commitment to safety and better working conditions. We think the ABCC is nothing more than an attack on people’s rights to have a good union with an an active rank and file membership.

The conservatives unashamedly go after any institution or system that challenges their free-market neo-liberalism. Its our job to counter that.

* Covers workers, their families and retirees in the building and construction and allied industry.

Next article – Bacardi and Cuban sovereignty

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