Constructing Fear

‘CONSTRUCTING FEAR: AUSTRALIA’S SECRET INDUSTRIAL INQUISITION’

by Chris White August 2007

The Right to Strike removed

On the 29^th August 2006, Howard began an unparalleled prosecution of 107 building workers for striking in protest against the unfair dismissal of their shop steward. Nationwide protests reacted to this politically motivated attack on these unionists, the Perth 107. The case continues in 2007 and may be played out in the glare and spin of electioneering.

A new documentary ‘Constructing Fear’ by Joe Loh, (as a DVD and from www.constructingfear.com.au), exposes Howard’s innocently named Australian Building and Construction Commission, the ABCC, in “spin” called a “watch-dog.” But this is modern Australia’s secret IR Inquisition into building and construction workers – a frightening illustration of Howard’s authoritarian anti-unionism. This extreme right-wing State authority with illiberal coercive ‘command and control’ powers acts in the interests of building and construction corporations.

This film tells the story of the fears of ordinary workers and their families caught up by the ABCC. Workers decided to stand up for the right to strike. They decided that they were not slaves. This is repression of the human right to strike.

Howard’s strategy, if his Government is returned, will be to apply the same ABCC repression to the entire workforce. It is alarming that a Labor leader Kevin Rudd is to keep this “cop on the beat” and not to abolish the ABCC until 2010.

“I ain’t no slave!”

The Australian Institute of Employment Right published www.aierights.com.au, my background paper on this IR dispute and the State’s use of these disturbing new penal powers against striking.

Howard’s new Building and Construction Industry Improvement Act 2005 (BCII Act, ‘improvement’ only for the employers) is enforced by the ABCC. The removal of a worker’s right to strike is a key aim. Strikes that were formerly legitimate and settled by negotiation are now made unlawful. Workers withdrawing their labour are subject to secret inquisitions and Government lawyers applying for penal sanctions. This intimidation constructs fear on building sites.

The giant corporation Leighton-Kumagai Joint Venture, LKJV was constructing a $1.6 billion railway project under Perth. Workers worked 56 hours plus disputed overtime. Many grievances and OHS issues troubled the Project, with traditional industrial strike action in response. CFMEU delegate Peters: “It’s like World War Two over here. The guys are shell-shocked but they are standing together. It’s been a non-stop campaign of intimidation. One safety rep went away on holiday and found he had been replaced when he got back. A tunneler who raised a safety issue was moved out of the tunnel to the far end of the job.”

Management provoked a strike. Workers walked off the job over the final straw – the unfair sacking of their shop steward Peter Ballard. After democratic discussion and despite CFMEU officials warning against strike action, 107 workers withdrew their labour. With their trial coming up, all face individual fines of up to $28,600 for the new offence of “unlawful industrial action”.

Months after the dispute was settled, with Peter Ballard not returning but giving the pay-out to charity, the ABCC delivered writs to homes: “These writs, and the threats to people’s homes, are the government’s doing.” On annual leave, Peters toured interstate condemning the prosecutions. He was sacked on his return for “operational reasons”.

The film tells the story of workers and their wives shattered. Father of four John Pes, said he was having difficulty meeting his financial commitments without a fine to add to his troubles. He said he had no regrets about taking strike action and had done what he believed was right. “At the end of the day, your beliefs are what you have. Some things that you do have consequences and we just have to fight on. Lock me up. I won’t pay fines for striking.”

Unionist Charlie Isaac proudly asserts: “ I ain’t no slave.” “…the only thing I had to offer Leightons, what they wanted from me, was my labour. If they weren’t going to listen to me, the only thing I could take from them that they wanted, was my labour. So I withdrew my labour which I thought in a democratic society you would be able to do.”

Charlie Corbett tells his story where he faces fines for a three day over-time ban to get two local apprentices employed.

“These members are at the forefront of the most punitive set of IR laws anywhere in the democratic world” ACTU President Sharan Burrow.

Combet (2005) said the defence of the Perth 107 is critical. Any fines imposed will not be paid. Expressions of solidarity have come from all over the world.

Background: Provoking Building Unionists

On the very first day after winning Senate control, Howard rushed through his anti-union agenda. Only the building and construction unionists were targeted with the BCII. The process had no legitimacy as real debate was not allowed and any opposition ignored. Minister Andrews said he was only “clarifying the regulation of industrial action”. But this disingenuous spin hides a politically motivated legal strategy to suppress “militant” building union strikes.

The BCII makes building union strikes and bans that were formerly legitimate now “unlawful”. A new offence of “unlawful industrial action” prohibits a worker or union from strike action. Fines are $110,000 for unions and $22,000 for individuals. Formerly, strikes were settled by union agreement or the AIRC used its discretion on the merits to settle disputes. Penalties were rarely used. Court orders are now be made to pay substantial compensation to any “persons affected” by the strike. This has dire consequences for unions, as strikes affect other businesses.

Lawyers as attack dogs

Howard failed to destroy the MUA during the 1998 Waterfront attack. This time, the Government devised a legal attack strategy instead of a direct confrontation with “militant” unions (Ross 2005). “Instead of dogs and balaclavas, this time they are going to do it with wigs and gowns” Tony Kucera CFMEU Legal Officer. Howard wanted to make legitimate union building conduct unlawful. Then with state policing ‘tough on unions’ and lawyers with penal sanctions, the unions would be legally crushed. Political opportunities to attack opposition would be created.

But no strike problem
But are strikes are problem? In the Howard decade, the downward trend of strikes continues, with fewest disputes and days lost for 45 years. Despite more strikes in the building industry, their targeting with heftier fines is in stark contrast with the industrial relations reality.

“From 1981-2002 data found that, on average, each building worker spent 0.481 of a day, each year, on strike. Alternatively, 99.76% of total working time was devoted to activities other than industrial disputes.” (Dabscheck 2004).

No “endemic lawlessness” occurs, as claimed by Minister Andrews. Minister Hockey now praises the BCII for suppressing strikes, “the lowest since 1913.”

How ‘Inappropriate’ industrial action was made ‘unlawful’

The history goes back to 2003, when then Minister Abbott concocted the Cole Commission for political reasons, costing $64 million! Marr (2003) exposes this in “First the Verdict.”

Cole provided a cloak of legitimacy to union busting. He found “inappropriate union behaviour”, namely short stoppages over grievances with poor site working conditions, minor union infringements of the right of entry process and established industry bargaining.

Cole’s style was like George Orwell’s 1984 “doublethink”. This is ability of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them. “Doublethink involves the forgetting of any fact that has become inconvenient, and then, when it becomes necessary again, drawing it back from oblivion for just so long as it is needed. This denies the existence of objective reality (and all the while taking account of that reality which one denies).”

“Behaviour which is not ‘unlawful’, or to be more specific, which is lawful, can be deemed ‘inappropriate’. Legislative changes can be recommended which will transform that which is ‘inappropriate’ into that which is ‘unlawful’. Through the interplay of ‘unlawful’ and ‘inappropriate’ in the Commission, the vice of doublethink is played out. That which is lawful is unlawful.” (Dabscheck 2003).

Cole found little “inappropriate employer behaviour” ignoring evidence of global construction corporations and contractors not paying workers’ legal entitlements, evading tax and breaching OHS standards.

Cole failed to consider the collaborative IR model that built the Sydney Olympic Games. Government, unions and employers worked together without dispute for world-class socially and environmentally responsible outcomes Webb (2001).

Cole recommended penal powers against unionists. But no unionist was prosecuted. Instead, Abbott introduced the first building legislation. It was defeated on its merits in a Senate Enquiry (2004) Beyond Cole. The Future of the Construction Industry: confrontation or cooperation?

Proscription of strikes
The BCII prohibits all industrial action during an agreement. Employers can make changes adverse to workers during the term of the agreement, but it is illegal for unions to respond with industrial action. The right to strike, as a human right, should not be prohibited. Total prohibition of strikes during the agreement is questionable in international labour law. The ILO allows a civic right to strike in political protest (White 2005a).

Construction Project Agreements negotiated by project managers, the contractors and unions provide practical guidelines and stability and protect workers entitlements. The BCII now makes them unenforceable.

Building unions are prohibited from organising action that coerces an employer. An organiser must not threaten the contractor to employ, as was the accepted practice, an experienced union delegate as a union OHS delegate to enforce safety. A head contractor must not refuse work to a sub-contractor because his workers are covered by a non-union agreement. Employers are not to be pressured to make superannuation payments to a particular fund. And there are many detailed restrictions.

Building strikes are not protected when they involve “extraneous participants”. Whether with other unions who have not technically complied with the requirements or inadvertently with non-unionists, industrial action is “unlawful”. Non-member participation in any strike renders all of it unlawful.

Double the repression: BCII and WorkChoices
Then WorkChoices in 2006 gave more penal powers for corporate interests to severely limit the lawful strike (Ewins 2007; McCrystal 2007; Peetz 2005-6; White 2005d).

WorkChoices outlaws union pattern or industry bargaining strikes. These had a 150-year history with employer support. Banning pattern bargaining flies in the face of industrial relations reality, as there is always a mixture of enterprise and industry bargaining. Building industry bargaining contributed more to productivity than AWA individual bargaining. The ILO criticised Howard as it breaches freedom of association and the right to strike.

Building union strike action during enterprise bargaining under WorkChoices is supposedly protected from statutory and common law sanctions. This limited right to strike is even more severely constrained by complex compulsory ballots for lawful protected industrial action.

Employers retain their legal right to lockout with no ballot requirement; the most unbalanced scheme in the OECD world. Lawful strike action can lose its protection, with the AIRC terminating the bargaining period and lawful strike. Under Work Choices, a new penal power exists where the AIRC is compelled to halt any strike that is not protected industrial action. There is no AIRC discretion to assess the merits of a strike.

Building corporations in new projects use the controversial WorkChoices provision for “greenfield employer agreements”, where unbelievably employers fix wages and conditions with themselves and not with workers and unions. Union right of entry is severely restricted.

WorkChoices deleted the limited immunity that required employers to settle a dispute in the AIRC for 72 hours before taking tort action in the common law courts. The ancient doctrines of tort makes a strike illegal by definition and the union subject to crippling damages, e.g. $6.48 million against the Pilots dispute. Kumagai-Leighton has a common law action against the CFMEU for damages.

Howard’s retrograde, repressive IR regime is a provocation against building unions.

Enforcement the ABCC way
Howard established the ABCC to overcome the reluctance of employers to sue or prosecute employees and their unions after a dispute was settled by agreement. The ABCC now prosecutes instead of the employers, who wash their hands.

The ABCC with an annual budget of $55 million and over 120 “Inspectors” is a unique form of State executive power under Ministerial control. It polices any strike labelled as “unlawful”. The ABCC gets injunctions to stop “unlawful industrial action”. Howard politically attacks big male union “bosses” for alleged “unlawful industrial action” and seeks, together with business groups in their TV ads, political advantage by linking Rudd to so-called “unlawfulness.”

The ABCC uses draconian coercive powers to interrogate workers and union officials allegedly using “unlawful industrial action”. During an investigation, ABCC “Inspectors” threaten a penalty of imprisonment for 6 months against any individual unionist summonsed to attend for questioning who does not answer questions or fails to hand over documents. Workers cannot choose their own lawyer. It is an offence to speak about what happened in the interrogation. “Constructing Fear” interviews those union activists subject to this Industrial Inquisition. Inspectors enter premises, interview and film union officials (and somehow this ends up on our TV).

The ABCC operates without checks and balances or any semblance of industrial fair play. The International Labour Organisation, ILO, Freedom of Association Committee (2005) criticised the BCII Act because it had no safeguards against interference in union activities; the ABCC can interview any person, in the absence of any suspected breach of the law; there is no appeal; penalties are not proportional to the offence committed and serious sanctions can be incurred.

The BCII is adversarial, litigious and with costly legal cases. Over $2 million was spent on lawyers between July 2005 and May 2006. The combined impact of large fines and high lawyers fees and costs are very heavy-handed sanctions against strike action, and do instil fear in workers.

The ABCC does not play any role in settling disputes. Rather it inflames industrial relations. Unionists repeatedly protest against the ABCC.

Trashing civil liberties
The BCII removes the common law privilege against self-incrimination and the right to silence, a critical legal right (Roberts 2005). Building workers need to have done nothing wrong to be subject to a tirade of hours of questioning, with no rules of evidence. Workers involved in union stop-work meetings face a harsh choice: answer the ABCC questions or face six months jail! Murderers are not denied the right to silence.

ABCC Inspectors, tagged as industrial secret police, intimidate innocent family members at home. These coercive powers go further than those of the police and, arguably, the Australian Security Intelligence organisation, ASIO. ALP and Green MPs argued that building workers have “rights” inferior to the limited rights for suspected terrorists. This has no counterpart in the democratic world.

The CFMEU warned in newspaper ads: “In what country can you be interrogated about a routine union meeting, and jailed if you don’t comply?”

This denial of civil liberties is an excess of State power against the individual worker or union official. This is an abuse of the rule of law, restricts political expression (Roberts 2006) and is another example of Howard’s Police State.

Safety compromised
Union safety campaigns are made much more difficult. In an industry with 50 deaths each year, the priority for the safety and lives of workers should prevail over profits. OHS lawful strikes are now more risky.

Brodene Wardley OHS Delegate and Safety Rep of the Year was “belittled” by the ABCC over a legitimate safety concern and tells her story in “Constructing Fear.” (Workers On-Line no 305, May 2006, http://workers.labor.net.au).

The best enforcers of OHS standards, the union worker safety reps trained for prevention and compliance, are excluded. WorkChoices prohibits union training schemes and paid OHS union training leave.

No right to strike over global warming
The BCII outlaws socially responsible union campaigns, such as the world-leading environmental green bans and campaigns on global warming (White 2007b). With community support, green bans and industrial action to save the environment are supported for socially responsible building development. Socially responsible strikes allow unions to substitute a social decision for a market determination. There should not be penalties against unions protesting about global warming (White 2007b). International labour law justifies green bans as a legitimate right to strike (Novitz 2002).

Unionists attending political protests against global warming are an important civic freedom of political communication in a democracy.

The ILO considers the political protest strike as legitimate (White 2005a). Building unionists stared down the threat of the ABCC prosecution by a attending ACTU protest rallies against WorkChoices.

In November 2005, the ILO Committee on Freedom of Association found the BCII Act breaches ILO Conventions 87 and 98 on freedom of association and collective bargaining. Howard refuses to take up the ILO determinations.

Conclusion: Police State
Building employers who love power use new authoritarian weapons to suppress unions’ response to workplace conflict, rather than settling by agreement the injustices.

It is not often that a US Republican President can be cited. But Eisenhower was a defender of the right to strike because the abolition of such a right would be the loss of a freedom.

“The right of workers to leave their jobs is a test of freedom. Hitler suppressed strikes. Stalin suppressed strikes. But each also suppressed freedom. There are some things worse than strikes, much worse than strikes – one of them is the loss of freedom.” President Eisenhower, cited by Whitlam’s Labor Minister Clyde Cameron (1970).

As Cameron concluded: ‘Eisenhower was correct in pointing out that the hallmark of the Police State is the loss of the right to strike. A worker’s right to strike is surely a basic human right. The right to withdraw labour is the one thing that distinguishes a free worker from the slave. This is a fundamental freedom.’ Suppression of strikes is not compatible with principles of democratic freedoms.

Building and construction unions respond to this provocation by political campaigning. The CFMEU poster from the Union Ballad of 1891 is “When they jail a man for striking, it’s a rich man’s country yet.”

Howard’s strike suppression is ideological, fuelled by pressure from powerful building corporations and their political associations, the MBA (Harnisch 2003), as well as the New Right H R Nichols Society (Evans 2002). This is political revenge for the 1960’s, when mass strikes over the jailing of union leader O’Shea defeated the then penal powers (Hutson 1983).

The ideology is that strikes can be ended or prevented by the state and employers’ vigorous use of repressive sanctions. “Paradoxically, a key factor in producing strikes in Australia is the belief that they can be eliminated.” Waters (1982). Despite suppression, strikes continued, often led by the building unions. By ensuring a lawful right to strike, i.e. without penalties, there is downward pressure on strikes, as employers more readily negotiate the grievances rather than punishing the workers and unions.

Labour law needs balance policies and interests between employers and unions, where collectivity and fairness have a role. Howe (2005) argues for cooperative and democratic models for a voice for workers, to enhance trust and productivity.

The ACTU’s IR campaign has widespread community support with a swing against Howard on IR. Howard seeks votes by trying to link Rudd with so-called ‘unlawfulness’ of ‘union bosses’.

But Rudd, disgracefully, despite ALP MPs forcefully opposing the BCII and the ABCC, will not abolish it until 2010. CFMEU Construction Secretary Dave Nunan condemns this as betraying hard-working building workers.

In 2005, Kevin Rudd argued the ILO principles on collective bargaining and the right to strike to oppose WorkChoices. But now his policy is in breach of internationally accepted labour principles (White 2007a, c).

The ACTU’s campaign for collective bargaining reforms includes protection of the means to balance power, to be used as a last resort, the right to strike and without penalties. The legal right to strike is one of the rights in the Australian Charter of Employment Rights (Bromberg 2007).

It is a shame the film “Constructing Fear” will not be shown on TV.

Chris White, former Secretary of the UTLC of SA, lives in Canberra and researches labour law. whitecd@velocitynet.com.au August 2007

References
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