Frameworks of Flesh — builders’ labourers battle for health and safety

The hope of the world “The union movement is idealistic in its essential arts by widening the scope of benefits derived from its ever-expanding usefulness. The betterment of the conditions of the workers has been brought about through organisation. A union constitutes a school for the working class, wherein they learn self-reliance, learn their rights, privileges, opportunities, as well as their possibilities. The union instills thoughtfulness in its membership, and broadens the mental horizon, thereby bringing hope and cheer to the hopeless and cheerless. The union imbues its members with a longing for a better and brighter future by increasing wages and diminishing the hours of toil. The union does antagonise, and strives to abolish many things that are, and advocates and tries to inaugurate changes which should, and will, be made in the future. Increased wages mean increased opportunities to live a life in harmony with the high aims and aspirations of the union movement. The union has made possible progress not only for the working people, but advancement in many other directions – morally, socially, and intellectually – and is traceable to the existence of the organisation of the workers. The object and aims of the union movement and the realisation thereof have been the dream of the sages and seers, and the prophets of the past ages. Every new demand for better physical protection of the workers ensures a great ideal development for a future generation.” by B. A. (Ben) Mulvogue, Secretary, Builders’ Labourers’ Union (Victoria), Builders’ Labourers’ News, 24 December 1915.

Frameworks for Fear

— Chapter Four of ‘Frameworks of Flesh – builders’ labourers battle for health and safety‘

by Humphrey McQueen

Email: loge27@alphalink.com.au

Website: Click on Cover of Bookor go to http://home.alphalink.com.au/~loge27/index.htm

A building or construction worker was killed almost every week between 1996 and 2005. Since 1995, their death rate has fallen by a third but is still three times higher than the average across the economy. The industry also has the highest number of work-related injuries requiring hospitalisation.[1] “Unacceptable” was the word that Royal Commissioner Cole chose to describe this toll in 2003 when 41 building workers were killed.[2]

Firms of every size fail in their legal duty to ensure safe workplaces. In October 2000, a Leighton’s worker died, and three suffered serious injuries, from the collapse of 70-tonne concrete bridge beam. In convicting the corporation, judge Gebhardt accused it of “gross shoddiness” and condemned its failure to mention the incident in its annual report.[3] In 2004, a crane operator with Baulderstone-Hornibrook died because its managers failed to allow for the effects of the weather. Meanwhile, the performances of a trio of smaller operators represented the harms inflicted every day. In May 2002, two labourers were removing a section of the roof at Kew Secondary College when one fell three metres to the concrete floor; the site manager told the second man to keep going. On 23 March 2003, a 66-year-old labourer died after falling through a hole in a roof he had been removing; WorkCover detailed five breaches of the regulations. In the third case, a Bendigo scaffolding contractor began a demolition in October 2004 but kept its harnesses and other safety gear back at headquarters.[4]

Battling such violence has been hobbled by Cole’s 2003 Report, followed by the Building and Construction Industry Improvement (BCII) Act of 2005, the Australian Building and Construction Commission (ABCC) and the Office of the Federal Safety Commissioner (OFSC). The partisanship of this quartet is illustrated by bans on union-run safety courses, the bar against job delegates being safety officers, limits on right-of-entry and by a distortion of “ingrained culture”. The lop-sidedness infects the OFSC through its reliance on market forces and “risk management”. The Cole Commission demonstrated its myopia by not detecting a trade in certificates of competence. These matters supply the substance of this chapter.

Presumptions of guilt

From mid-2001, the Royal Commission into the Building and Construction Industry repackaged the accusation that labourers threw themselves off buildings to get compensation.[5] This time, employers and their agents twisted the charge to allege that unions provoked disputes over safety to win industrial demands, such as Enterprise Bargaining Agreements (EBAs). According to Commissioner Cole, this “widespread exploitation” of bosses had trivialised safety. In truth, workers on EBAs were half as likely to be injured as those outside them. Pressing for an EBA was, therefore, itself a safety measure.[6]

Cole peddled his line about the unions’ misuse of OHS after being stung by complaints that he was ignoring the bosses’ law-breaking when they put workers’ lives at risk. He assured grieving families of what a soft-hearted judge he had always been.[7] His Final Report returned to his initial prejudices by pretending that only one of the 88 “types of inappropriate conduct which exist throughout the building and construction industry” involved “employers[’] failing to observe proper Occupational and Health procedures.” His eight other mentions of health and safety attacked the unions for being too vigilant.[8] In addition, he papered over the tardiness of his Commission’s concern for safety by announcing that there was “no more important subject.”[9] If so, why had his staff not subjected OHS to the same scrutiny as other aspects of the industry? Cole allocated only one volume out of twenty-three to Occupational Health and Safety, with glimpses in the volumes for each State.[10] He excused this imbalance on the ground that his brief had been to expose “to the public gaze aspects of practices in the industry not previously publicly known.”[11] Hence, he had to concentrate on coercion by unions and improper payments to their officials. How was it that such allegations were not “publicly known”? Had Cole never heard of the de-registrations of 1974 and 1986, the Joint Victorian and Commonwealth Royal Commission into Gallagher, and the 1991-2 Gyles Royal Commission in NSW?

Cole’s comment that workplace injury and disease were already well known is all too true. That knowledge had been available before the first British laws attempted to limit such hazards in 1802. What is less well known to the public is the refusal of employers to obey that legislation and the failure of the legal system to treat its violation as criminal.

Cole had also to explain why he did not expose to “public gaze” a single case of corruption on the part of union officials. He said that he had sealed that evidence in a “Secret Volume” to preserve the officials’ rights to fair trials. Despite the ferocity of the government’s assault on the construction unions, no charge has been laid on the basis of Cole’s material. Meanwhile, that evidence has justified attacks on the building unions, without identifying one official as a possible crook. [As Royal Commissioner into kickbacks by the Australian Wheat Board to the Iraqi regime, Cole again upheld the presumption of innocence for the Coalition government, since his Report named names only from within the AWB.[12]]

Stasiland?

The Cole Report supplied the template for the Australian Building and Construction Commission (ABCC) to operate as a roving Royal Commission against building workers.[13] The Federal government gave the ABCC powers which Australians associate with political police. Labourers who stick up for each others’ safety are treated like terrorists, to be interrogated for up to 4.5 hours a day, with no right to silence; should they refuse to appear or to answer, they face a mandatory six-month jail sentence. Despite rhetoric about mateship, the Coalition government insisted that unionists dob each other in. Their lawyers must be approved by the ABCC, and are also subject to investigation. Until the proceedings are concluded, workers face six months in gaol for discussing the cross-examination even with family members. These powers apply to passers-by, not just to militants so that the ABCC interrogated a Melbourne academic about some argy-bargy he had observed.[14] In 2008, Victorian organiser, Noel Washington, refused to cooperate when the construction police demanded information about a picnic which the union held off-site and outside working hours. He faces six months in prison.

ALP leaders are threatening to maintain this anti-labour regime, contrary to Party policy. In 2007, as an earnest of this goodwill towards Messrs Construction Capital, opposition leader K. Rudd initiated the expulsion of the assistant-secretary of the WA Construction Division, Joe McDonald, from the ALP because he had called a boss a “fucking thieving parasite dog”. A few weeks later, on 5 July, concrete work collapsed on that site. Which event was the more violent and intimidating: foul language or a falling section? Not a word of criticism came from ALP leaders against the firm in charge of that life-threatening incident, not even after a panel from the Safety Institute of Australia (WA) specified 57 other OHS failures.[15] Instead, Rudd buckled to a Liberal Party internet campaign by sealing McDonald’s expulsion from the ALP the day after the court acquitted him of trespass. His hanging offence had been to assure reporters that, unlike that “burnt-out dictator”, John Howard, “I’ll be back” to organise against “getting robbed by unscrupulous bosses”. K. Rudd found these words “incendiary”, with no place in “a more modern industrial relations system.”[16] He again pledged the ALP to maintain a system condemned by the International Labour Organisation. Gillard could turn the police-state powers of her Australian Building and Construction Commission against the bosses for their culture of crime and neglect.[17]

The harrowing of labourers by the Cole Royal Commission and by the construction police is normal for capitalist justice and parliamentary politics. The continuing assault is not a sign of creeping fascism but expresses the class nature of bourgeois democracy and law, as documented throughout this study, and conceptualised in the concluding chapter, “Killing no murder”.

Impartiality

Of the 47 orders that the ABCC issued during 2005-06, four out of five were against unionists. The ABCC even took on workers over a 20-minute stoppage in April 2006 to collect money for the family of a dead workmate.[18] Next year, 47 of the 52 to be questioned were unionists.[19] The ABCC used its powers against bosses where they did the decent thing. For example, it prosecuted Multiplex for paying wages when unionists stopped work over “deaths in industry”. The ABCC went after Multiplex although it had been the first major construction company to gain OHS certification in Victoria.[20] Similarly, the ABCC belittled a Perth woman who had been awarded Safety Representative of the year.[21]

The ABCC justified its moves against unionists on the grounds that those proceedings “served the public interest by bringing about cultural change in the building and construction industry.”[22] That claim was true in so far as the Construction Division of the CFMEU in Victoria no longer walked off, with no loss of pay, for a day after a fatality. Given the rarity of OHS prosecutions, this direct action had offered a deterrent which was immediate and hit employers where it hurt. In stamping out the “deaths-in-industry” stoppages, the ABCC boasted that it had saved millions in productivity but said narry a word about saving a single live.[23]

That the ABCC Annual Reports have not mentioned on-site safety is inevitable since the regulations gave the Commission no procedures with which to enforce the relevant sections of Code or Guidelines. The ABCC does not pursue contractors on whose sites workers are being harmed. Instead, after injuries to two Sydney workers, the Construction police went after the unions’ right-of-entry permits.[24]

Rights of entry

The Building and Construction Industry Improvement (BCII) Act of 2005 entitled union officials to two site-visits a year, a restriction backed by K. Rudd.[25] That constraint endangers the workers’ health and safety, and those of the public. Collecting evidence is also allowed, but limited. Without photographs, shonky scaffolding is harder to document. Officials need a permit to enter a worksite, which is denied to anyone convicted under any workplace law. One ground for exclusion is the use of a right-of-entry permit gained for OHS to deal with other problems. Yet, it is commonplace for an employer who defies OHS regulations to underpay, so that an OHS complaint will expose a nest of offences. In short, the ABCC encourages offenders with a bad safety record to deny entry to an official who has been convicted of protecting entitlements along with upholding OHS regulations.[26] The Federal government underwrote this bias when, in 2005, it allocated $21.7m. over three years to the Office of the Federal Safety Commissioner (OFSC), compared with nearly five times as much to the ABCC.

Although an instant walk-off is the most effective way to improve health and safety, the organiser who gains entry can get action only after time-consuming procedures. In 1999-2000, Victorian WorkCover Authority had demonstrated the necessity for swift action when it stopped nearly 1,400 building sites or practices as “immediate risks”.[27] Despite those results, the Victorian ALP’s Amendments in 2,004 were as restrictive as the Howard’s government’s BCII. A union in that State has to apply to a magistrate for an entry permit and to specify the problem in advance; the official is not allowed to look into other violations found in the course of that inspection.[28] The ABCC justifies its limitations on the right-of-entry because of what it calls the “ingrained culture” of building workers and their unions.

When I hear the word “Culture”

The ABCC has centered its civil penalty proceedings “on recurring issues in the building industry, such as coercion, strike pay and unlawful industrial action.” [29] This catalogue ignores the prevalence of underpayments, the failure to pay at all, [30] the coercion of workers into hazardous behaviour, and the employers’ defiance of health and safety laws. None of those offences is part of the Cole-ABCC’s “ingrained culture”.[31] Nor does it include collusive tendering, despite Leighton’s CEO, Wal King, justifying his companies’ use of false invoices to conceal price-fixing as “the culture … and custom that had been longstanding in the industry that had been handed on for years.”[32] So had his excuse. In 1911, the NSW MBA had justified its members’ involvement in illegal commissions by saying they “should be openly recognised” as “universal and worldwide”.[33] Notwithstanding a 1994 NSW government report’s branding King and Leightons as “not of good repute, having regard to character, honesty and integrity.”[34] these findings, he and his corporations are permitted to dominate the construction sector and to call in the ABCC to combat the unions’ ingrained culture of safety.

The Commissioner’s trivialisation of the ingrained culture of employer irresponsibility becomes apparent by inserting “OHS” wherever he had written “industrial” or “criminal” in this extract from the Summary of his Royal Commission Report:

There is widespread disrespect for, disregard of and breach of the [OHS] law in the building and construction industry. The criminal, industrial and civil [and OHS] law is breached with impunity.

The culture in the industry is that the criminal [and OHS] law does not apply because industrial circumstances are involved. The attitude is that the applicability of industrial [and OHS] law is optional because there is no body whose function it is to enforce it, or which has the will, capacity and resources to do so….

There are four principles which should drive cultural change:

(a) the boundary between lawful and unlawful industrial [and OHS] activity must be clearly delineated;

(b) unlawful conduct [around OHS] must attract serious consequences so that the rule of law may be re-established;

(c) those who, by unlawful [OHS] conduct or practices cause other participants in the industry loss should bear the cost of the losses they cause; and

(d) there should be an independent monitoring and prosecuting authority in the industry to monitor conduct, and uphold the rule of law [on OHS].[35]

Cole’s Report failed to make recommendations of this stringency for OHS – despite his admission that no issue was “more important.”[36]

In boasting that the ABCC has encouraged sub-contractors to assert their rights, [37] its Chairman, John Lloyd, ignored how those rights become a licence to violate OHS requirements and not to pay entitlements.[38] Although Chairman Lloyd came from National Crime Authority, he found no evidence of underpayment of superannuation contributions in his first Report and, by 2006-07, had uncovered only two cases.[39] Meanwhile, the Tax Office had retrieved $93m. from 234 offenders.[40] If this disparity is not a sign of incompetence, is it evidence that, contrary to Lloyd’s protestations of impartiality, “the ABCC concentrates on a particular category of industry participant for attention”?[41]

The ABCC is also silent on the culture of other law enforcement agencies. Ever since the convicts, Australian police forces have benefited from their “ingrained culture” coercion and corruption. That “course of conduct” was rampant in the Victorian and West Australian police during the years of Cole, and while the ABCC recruited from those services.

The Safety and Compensation Council came up with its own twist on “culture” to explain why building workers were to blame for their higher-than-average rates of injury, In deciding that three features put these workers at risk: their nomadic habits, a blokey outlook and youthfulness, the Council overlooked that employers prize those characteristics among their labouring force because they facilitate speed-ups.[42] That contractors have always been on the look out for young blokes who accept risks also escaped the notice of the Brisbane-based consultancy, Onetest. This firm produces “psychometric assessments” of a million employees a year to help managers identify the attitudes of applicants towards risk. Onetest does not rank employers to let wage-earners decide whether it is safe to work for them.[43] Nor do calls for genetic tests in the workplace extend to determining the suitability of bosses.[44] Like Cole, the ABCC and the Safety and Compensation Council, Onetest cannot understand that “culture” is determined by the struggle between classes.

Networks of mass distraction

The demonising of the “culture” of building workers is but one strand in the ideology of capitalism spread by the commercial mass media – or Admass. Those conduits are not the servants of big business. They are big business. As such, they dare not remind workers that their labour is the source of somebody else’s profit. Still less do documentaries or dramas connect that exploitation with workplace assaults on body and mind. Instead, unions appear in the news when their members withdraw their labour or are caught scamming the compensation system.[45] What passes for news is underwritten by the stories told in the entertainment programs on television – “the triv”.[46]

By side-lining the work that unionists perform every hour of day, Admass makes the “ingrained culture” as defined by the Construction police seem natural. To reinforce its version, the ABCC practices trial-by-media in passing to television networks the videos that its inspectors take of unionists going toe-to-toe with bosses. Those grabs are screened without the build-up of feelings fueled by underpayment and OHS violations.

On screen, workplace injuries are silenced along with the contribution that human labour makes to wealth. That absence is remarkable. After all, dramas on the triv are a mish-mash of crime, medicine and law enforcement. The intersection of those three concerns is also the stuff of OHS and compensation. WorkSafe Annual Reports offer a starting place to script Bones of Building, a series where Dr Bone is an OHS inspector within the construction industry. This scenario suggests a Logie-winning formula – until the exploitation of labour is remembered.

A series such as GP individualised the causes of injury to workers who presented at the surgery, never sheeting blame home to systemic cost-cutting. Should workplace injuries appear in a story, they are caused by “rotten apples” among the otherwise honest employers – or are just bad luck. Another index of this slant is that the triv’s storylines revel in the sex lives of on-screen police, gangsters, surgeons, soldiers, nurses and solicitors. Yet those characters rarely suffer from workplace injuries and diseases. More triv detectives get shot in the line of duty, than are cursed with lower-back pain from stake-outs.

One duty of Admass is to divert attention from the miseries of employment, as the Managing Director of the Nine Network appreciated in 1970:

The man who comes home from the Ford production line, or from driving a cab through our chaotic traffic, or indeed from conferences at the advertising agency, is, more often than not, wrecked from a hard day. He wants to get a drink in his hand, have a talk with the wife, enjoy a feed and relax. And four out of five men relax with the tele – and that’s quite right.[47]

The triv offers workers a warm-bath after their being exhausted by the job, supplying a soporific, not a stimulus to thoughtful activism.

Aggregate capital needs Admass to do more than distract wage-slaves from their workaday blues. After individual capitals have extracted their pounds of flesh at work, they compete to get that wage back by exciting the viewer to spend. The networks are not in business to remind viewers of what they have endured to gain their spending power,[48] anymore than they alert workers to how much pain they will have to bear in keeping up their mortgage and credit-card repayments.

Although Admass distraction distorts the significance of workplace relationships, its outpourings are less effective at shaping attitudes than is one’s own job. The $237m. that the Coalition spent promoting WorkChoices could not erase the understanding that workers had gained from their experiences of employment in a market regulated by and for corporates. Activity conditions our thoughts far more than amusements or propaganda can determine our experience. That we become what we do is confirmed by the culture of work inside the Cole Commission and at the ABCC.

***** Chambers

How different might Cole’s Report have read had he held the hearings on the 30^th floor of a construction site, four floors from a lavatory or taps, surrounded by concrete pours, or while dodging the rain? The editor of the National Safety Council’s monthly magazine drew attention to the significance of location in the divide within the “culture” of OHS:

There are two OHS worlds: that of the executive and that of the at-risk worker. And rarely do the two worlds really meet – let alone merge into one world.

This fact struck me when I spent a week in Melbourne recently observing activities sponsored by Victorian WorkCover Authority for its Health and Safety Week.

The existence of the two worlds occurred to me on one of the days in particular. In the morning, I attended an OHS briefing for CEOs at the Sofitel Hotel. Later the same morning, I went out to the Dallas Brooks Hall to an OHS Refresher Course for safety officers, jointly organised by WorkCover and unions.

The contrast between the two events could not have been more striking.

At the CEO breakfast, pressed linen table cloths, sparkling glassware, business suits, and polite speeches were the order of the day. At the safety officer course, by contrast, polystyrene cups, paddle-pop sticks, and no-nonsense talk were the go. Superficial differences, you might say, but they pointed to a fundamental rift which exists in the OHS world.

But how might interaction be achieved?

Well … the best – perhaps the only – way would be for companies to introduce a policy of exchange between management and at-risk working roles. In companies game enough – or wise enough, I would say – to take such a radical policy on board, executives would spend two weeks a year doing a hands-on job at their company. They would not therefore just talk about “walking the talk” but walk the walk, so to speak. They would do 12-hour shifts in full PPE (where it is used) and have their job performances monitored as if they were real workers in the job they elected to take on. They would also have to deal with management and other hands-on workers over safety issues.[49]

Far from adopting this suggestion, the ABCC preserved its impartiality by commissioning a lavish suite in which to interrogate labourers.[50] In somewhat less plush surrounds, though perched on ergonomic chairs in air-conditioned courtrooms, industrial magistrates are in danger of slicing a finger on a sheet of paper as they decide whether a stoppage was justified by “a reasonable concern by the employees about an imminent safety risk.”[51]

Remoteness from the hazards of building work contributed to making the first Progress Report from the Office of the Federal Safety Commissioner into a monument to bureaucratic blather, meriting a prize for the largest number of weasel words per page in any public document. When the Commissioner was not “championing a cooperate approach”, he was “identifying and sharing best practice and facilitating shared responsibility for improvement through consultation, collaboration and communication.” Needless to say, that gentleman saw his job as an “audit to improve, not inspecting to enforce.” [52] As an apt aid to artful alliteration, the Report was transparent about its priority of putting words above action. The OFSC’s second Report for 2006-7 confirmed its preference for rhetoric over substance by acknowledging little improvement in safety on sites while boasting that a “key achievement” had been the completion of an internal review.[53]

Market forces

Failure by the OFSC to improve safety did not shake its faith in market forces as the cure for OHS violations. The OFSC took over this solution from Cole who had supposed that contractors could be made to behave “by harnessing the competitive force in the industry to work for OHS.” To make “competitive force” work its wonders, Cole deemed government intervention essential, thereby puncturing his own faith in the market’s ability to correct itself. He accepted “the effect that the fiercely competitive nature of the industry” had in undermining health and safety.[54] During his discussions with industry participants, he discovered that employers operate on very small profit margins. This originates at the top level, where head contractors tender on the basis of small profit margins or, often, at cost … As a result, for a head contractor to ensure profit at the end of a project, considerable pressure is often applied by the head contractor with the aim of reducing the costing provided by tendering sub-contractors. The same process is then replicated down the chain of sub-sub-contractors.[55]

Cole learnt that cutting back on health and safety was a way for employers to squeeze in under their tender prices. To stay in business, firms accepted contracts on which they knew they were going to lose money on “suicide bids”, which could turn murderous for the workers.[56] What Cole could not admit is that market failure is not an exception to be corrected but, rather, is how capital succeeds at expanding. Had Cole been in earnest, he should have recommended matching the clients’ penalties on the contractors for running late with fines on both sets of capitalists whenever the rate of injury on a project exceeded that for the whole economy.

To correct the market, the OFSC planned to accredit construction companies before they could bid for larger government contracts. The Office weighted its criteria for accreditation towards a corporation’s demonstrating that it had an OHS plan. This enthusiasm for documentation overlooked the finding by the Royal Commission into the ESSO explosion at Longford that its safety manuals had been so elaborate as to be “repetitive, circular” and “impenetrable”.[57] In another case, a firm submitted “a model safety plan that it had put into operation at the time” of an employee’s death in 1996. “Model” on this occasion did not mean that it worked. Had it done so, the worker would not have been killed. Instead, “model” meant that the firm had ticked all the boxes on a form so as to look good in court.[58]

Enthusiasm for market forces led the OFSC to disparage the evidence of harms from compensation payouts as “lag indicators”. Instead, its Commissioner found merit in “Positive Performance Indicators” (PPIs).[59] “Lag” sounds down-beat compared with “positive performance”. The difference is that PPIs are promises and paperwork whereas lag indicators record actual injuries. The weakness in relying on compensation statistics is not that they lag behind the assaults, but that the authorities so rarely use those numbers to prosecute. Moreover, the PPIs consist of audits, meetings, safety inspections, the fraction of staff being trained and the hazards identified. The sole practical element in an OFSC audit was the rectification of hazards, although the Commission undermined that step since improvements were to accord with “an appropriate risk-management approach.”[60]

Risky assessments

At the same time as the OFSC embraced risk management, researchers reported it “plagued by bureaucracy, token compliance and time-consuming procedures.”[61] In addition, by focusing on major hazards, risk management ignores two founts of injury and disease. First, the recurrence of low-risk problems is a warning of the prospect of a major incident since sloppiness on small matters points to carelessness on catastrophes. Secondly, many disablements derive from the repetition of non-life-threatening risks as is shown by 40% of injuries coming from strains and sprains and the 70% of construction workers who retire with hearing impairments.[62]

When firms are not busy managing the risk of getting caught, they manage the risk of spending too much on safety. Companies buy software packages to administer safety, not to achieve it. NSW WorkSafe complained in 2001 that contractors had welcomed “risk management” as a justification for doing no more than deal with safety problems as they arose. This “perversion was broadly recognised as an industry practice.”[63] The safety manager for John Holland suspected that plenty of employers looked on a Job Safety Analysis as “some mechanical steps that have to be done because the law says so and we know we won’t really follow it anyway.”[64] A safety consultant criticised the risk-based approach because he had met so many employers “who are not acting responsibly.” Even for the rest, he feared that

the risk assessment approach would work if there was a decent inspectorate in place, but under the present system, companies can do the wrong thing for 20 years and not get caught if they are “lucky” enough not to have an incident.[65]

No government has ever appointed enough risk assessors, and those who were at the workface had no statutory requirement to be trained or qualified.[66] Where tests existed for on competency, the market supplied fake certificates.

Lottery “Tickets”

The blindness of the Cole Commission to the irresponsibility of bosses was spotlighted by its failure to uncover the “vibrant market for false certificates of competency” around Sydney throughout the hearings. NSW public servants sold 4,000 fraudulent credentials for working with hoists, front-end loaders and explosive tools, or in dogging, rigging and scaffolding. The NSW Independent Commission Against Corruption (ICAC) documented these malpractices. Not a trace of either scam surfaced in the Cole proceedings. Yet his Commission had $66m. to chase up allegations against union officials for its secret volume. Semi-literate non-English-speaking labourers knew what was going down. Silks on $1,500 a day with police powers did not.

Employees, the self-employed and employers had differing reasons for buying these tickets and assessments. Their justifications underline why neither market forces nor the good will of employers will hold down rates of death and injury in the construction sector.

Employees: Some workers bought the fake documents on the oldest of grounds – to put food on their tables. A labourer who paid $1,000 to get certificates for carpentry, dogging, forklift and hoist confessed: “I wasn’t sure whether to do it because I knew I was wrong. I have a young family to think about and extra money would help a lot.”[67] In several cases, the workers who bought the Tickets were experienced and competent for the skills covered by the fake documents. They had been doing those tasks for years but had difficulty in explaining how to do so on an exam paper. Some held Permits to perform the work for which they bought Tickets. One WorkSafe inspector excused his corruption:

These guys are working 30, 40 levels above the ground. They make one mistake and it’s the last one they make. I consider them to be adequate in their duties. That’s the wrong way round, sure, but I still consider them safe. At least they won’t die.[68]

In other cases, the workers who paid for fake qualifications put at risk their own lives, those of their fellow workers and of passers-by.

Self-employed: Tickets were useful to so-called independents since the more skills for which those “self-employed” held a licence, the better chance they had of being hired, and the more they expected to earn. A larger fraction of these workers were called upon to perform work for which they had neither training, certification nor experience, making them a danger to everyone, as one more instance of the threats posed by sub-sub-contracting outside EBAs.[69]

Employers: Employers bought tickets for their employees in order to switch them from one “trade” or “skill” to another and thus save on time costs. The owner of a bricklaying concern explained the benefits to his business from buying fake certificates:

For example, an employee having a dogging licence enables him to work with the crane crew and, if required, to undo the brick cage without having to wait for a dogman. Another example would be having someone with a forklift licence moving a pallet of bricks from one area to another without having to wait for a forklift driver. From a contractual responsibility, 99 percent of these tasks is the responsibility of the principal contractor. However, it costs money and time to wait for the builder to obligate his contractual duties and carry out these tasks.[70]

This admission illustrates one more way in which the force of the market threatens safety in the drive to reduce time-costs.

Transfield – again All three reasons for going after fake Tickets collided when Transfield bought certificates for some of its employees. Transfield’s addiction to violating OHS regulations across its 50 years was outlined in the previous chapter.[71] Even Cole found fault with Transfield’s safety record on the Melbourne CityLink.[72] In a move typical of those violations, the managers on Sydney’s Northside Tunnel hired inexperienced and untrained people to replace battlers for safety. Transfield attempted this switch-over just as the project was coming to its end, with the rush to finish on time and within budget. If attention to safety slowed the operation, Transfield stood to lose money.

In the days before the ABCC, Transfield could not get away with sacking union activists just because they were insisting on a safe workplace. The firm had to get around the custom that the order of dismissal be in accord with the number of Tickets that the workers held. The chairman of the On-the-Job Safety Committee told the ICAC:

We had quite a number of competent people that didn’t hold legitimate tickets but had been driving machines for years on permits. A change in middle-management superintendent took place where a lot of unskilled people were brought on board and [to replace] the people that were potentially creating industrial problems as regards the way the job had been driven.

Hence, the Transfield managers purchased phony Tickets for the newcomers to justify employing them in place of the activists. In response, the Safety Committee chairman bought himself an Excavator’s Ticket to hold onto his place. When the job ended, he suffered the consequences of being “deemed too safe”, as he told the ICAC: “The last two and a half years I have been out of work … because of some of the issues that I used to raise, and I believe that’s filtered through to the tunneling industry.”[73] Had the ABCC existed when this worker was battling for safety, and would have gone after him. As it was, Transfield escaped prosecution, while he suffered the maximum penalty for a worker – the loss of his livelihood.

Although Cole’s terms of reference allowed his Commission to pursue the trade in fake Tickets, his presumption of guilt by the workers because of their “ingrained culture” served as an insurance policy against a repetition of the derailing of the Royal Commissions into the Painters and Dockers and into the Building Productivity. The state had set up those investigations to cripple unions only to expose the big end of town through its bottom-of-the-harbour tax evasions and collusive tendering. If industrial action by unionists is criminal, why are the violations of OHS by employers not treated as real crimes?

---

[1] National Safety (NS), February 2006, p. 20; Office of the Federal Safety Commissioner (OFSC), Progress (sic) Report, 2005-6, p. 8; Royal Commission into the Building and Construction Industry (RC), Final Report, Canberra, 2003, volume 6, pp. 136-41, 145 and 157.

[2] RC, Final Report, volume 1, p. 39; NS, July 2007, p. 6, November 2007, p. 6; RC, Workplace Health and Safety in the Building and Construction Industry, Canberra, 2002, Discussion Paper 7, p. 27.

[3] Age, 28 May 2004, p. 3.

[4] Prosecutions: a summary of prosecutions brought by the Victorian WorkCover Authority, VWA, Melbourne, 2005, pp. 5, 7, 10, 11 and 23.

[5] Victoria, Parliamentary Debates, v. 92, 18 October 1899, pp. 1968-74.

[6] RC, Final Report, vol. 6, pp. 106-7; Greg Foley, “Construction industry occupational health safety performance overview, Australia 1992-93”, Journal of Occupational Health and Safety ANZ, (JOH&S ANZ), 13 (1), February 1997, p. 81.

[7] RC, Final Report, vol. 14, pp. 63-64; vol. 6, chapter 3.

[8] RC, Final Report, vol. 1, pp. 6-10.

[9] RC, Final Report, vol. 6, p. 5.

[10] RC, Final Report, vol. 14, pp. 63-64.

[11] RC, Final Report, vol. 6, p. 6.

[12] Caroline Overington, Kickback: inside the Australian Wheat Board Scandal, Allen & Unwin, Crows Nest, 2007, pp. 250-1.

[13] Liz Ross, “Building Unions and Government ‘Reform’: The Challenge for Unions”, Journal of Australian Political Economy, 56, December 2005, pp. 172-85.

[14] Sydney Morning Herald (SMH), 15 December 2007, p. 1.

[15] Contractor, September 2007, p. 2.

[16] West Australian, 26 October, p. 9, 27 October, p. 7 and 29 October 2007, p. 1; would Pastor Bonhoeffer have approved of his epigone’s denial of due process?

[17] Advertiser, 14 April 2008, p. 10.

[18] Australian Building and Construction Commission (ABCC), Annual Report, 2005-6, p. 53.

[19] ABCC, Annual Report, pp. 52-3; Annual Report, 2006-7, p. 24.

[20] NSCA’s Australian Safety, November 2000, p. 55; ABCC, Annual Report, 2005-6, p. 51; see also Annual Report, 2006-07, p. 41.

[21] www.constructingfear.com.au for a free download, and http://www.abccmisery.com.au

[22] ABCC, Annual Report, 2006-7, p. 41.

[23] ABCC, Annual Report, 2005-06, pp. 50-51.

[24] ABCC, Annual Report, 2005-6, pp. 50-51; Annual Report, 2006-7, p. 41.

[25] NS, October 2007, p. 6.

[26] NS, May 2006, pp. 24-26; October 2007, p. 6.

[27] NSCA’s Australian Safety, November 2000, p. 54.

[28] Peter Rozen, “Significant Change or Merely Fine-Tuning? The Occupational Health and Safety Act, 2004 (Vic)”, Australian Journal of Labour Law (AJLL), 18 (1), April 2005, pp. 84-86; cf W. J. Ford, “Being There: Changing Union Rights of Entry Under Federal Industrial Law”, AJLL, 13 (1), June 2000, pp. 1-27.

[29] ABCC, Annual Report, 2005-06, p. 32; for Cole’s version of “Cultural Change” see Final Report, volume 11.

[30] Peter Meritz, “Paradise Postponed: a history of attempts to ensure payment in the building and construction industry in New South Wales”, Building and Construction Law (BCL), 18 (3), June 2002, pp. 169-79, and Keith Redenbach, “Getting paid in the Construction Industry”, BCL, 23 (2), April 2007, pp. 92-110; cf. Claire Mayhew, Michael Quinlan and Laura Bennett, Effects of subcontracting on occupational health and safety, Studies in Australian Industrial Relations, UNSW, Kensington, 1996, pp. 123-6.

[31] RC, Final Report, volume 11, “Achieving Cultural Change”.

[32] NSW Casino Control Authority, Report of Public Inquiry, 1994, p. 32; for Leighton’s collusive tendering see Report of NSW Royal Commission on Building Productivity, NSW, Parliamentary Papers, Second Session, 1992-93, vol. XXII, Paper 273, pp. 99 and 130.

[33] NSW Master Builders’ Association, Annual Report, 1911, no pagination; Report of the Royal Commission of inquiry into certain matters relating to the Department of Public Works, NSW, Parliamentary Papers, 1911, volume 1, pp. 681-926.

[34] NSW Casino Control Authority, Report, 1994, p. 32.

[35] Rewrite of passage from RC, Final Report, vol. 1, p. 155.

[36] RC, Final Report, vol. 6, p. 5; vol. 1, p. 41.

[37] ABCC, Annual Report, 2005-06, p. 6.

[38] RC, Final Report, vol. 8, pp. 111-217 on Phoenix companies, and vol. 9, pp. 27-31, on superannuation, and pp. 255-63 for non-compliance with compensation premiums.

[39] ABCC, Annual Report, 2006-7, p. 30.

[40] SMH, 22 September 2007, p. 11.

[41] ABCC, Annual Report, 2005-06, p. 8.

[42] NS, August 2005, p. 21.

[43] NS, October 2007, pp. 35-37; “Editorial”, NSCA Australian Safety, October 2000, p. 4.

[44] Margaret Otlowski, “Employers’ use of genetic test information: is there a need for regulation”, ALJJ, 15 (1), May 2002, pp. 1-39.

[45] Donald E. Stewart, “Families and Television: content analysis”, Media Information Australia, 1983, pp. 198 and 204; Rob Crane, “Trade Union Advertising Campaigns: A Case Study”, Journal of Industrial Relations, 28 (2), June 1986, pp. 252-53n.; P. Bell et al., “Headlining risk: an analysis of occupational health and safety in the Australian press”, JOH&S ANZ, 7 (4), August 1991, pp. 273-80; International Labor and Working Class History, 59, Spring 2001, Special Issue on “Workers and Film: as subject and Audience”.

[46] George Turner’s term for television throughout The Sea and Summer, Faber, London, 1987.

[47] B&T, Advertising, Marketing and Media Weekly, 27 August 1970, p. 18.

[48] Michael A. Lebowitz, “Capital and the production of needs”, Science and Society, 41 (4), Winter 1977-78, pp. 430-47; Dallas Smythe, “Communications: Blindspot of Western Marxism”, Canadian Journal of Political and Social Theory, 1 (3), Fall 1977, pp. 1-28; Humphrey McQueen, The Essence of Capitalism, Sceptre, Sydney, 2001, chapter 14.

[49] NSCA’s Australian Safety, July 2000, p. 4.

[50] ABCC, Annual Report, 2005-06, p. 27.

[51] ABCC, Annual Report, 2005-6, p. 54.

[52] OFSC, Progress Report, 2005-6, pp. 11 and 24.

[53] OFSC, Progress Report, 2006-7, p. 13.

[54] RC, Final Report, v. 1, p. 45; vol. 6, pp. 40-44.

[55] RC, Discussion Paper 7, 2002, p. 27.

[56] RC, Final Report, vol. 6, pp. 40-42.

[57] NSCA Australian Safety, August 1999, p. 6; see also Andrew Hopkins, Lessons from Longford: the Esso gas plant explosion, CCH Australia, North Ryde, 2001, pp. 83-84.

[58] NSCA Australian Safety, November 2000, p. 57.

[59] OFSC, Progress Report, 2005-6, pp. 8 and 27; A. Costigan and D. Gardner, “Measuring performance in OHS: an investigation into the use of positive performance indicators”, JOH&S ANZ, 16 (1), February 2000, pp. 55-64; R. Mitchell, “Development of PPIs to monitor OHS performance in the Australian construction industry”, JOH&S ANZ, 16 (4), August 2000, pp. 325-31; Hopkins, Lessons from Longford, p. 71.

[60] OFSC, Report, 2005-6, p. 27.

[61] NS, December 2006, p. 21.

[62] JOH&S ANZ, 16 (6), June 2000, p. 512; Greg Foley, “National workers’ compensation-based data”, JOH&S ANZ, 13 (3), June 1997, p. 279; R. Trethewy et al., “Improved hazard identification for contractors”, JOH&S ANZ, 16 (6), December 2000, pp. 507-20.

[63] RC, Discussion Paper 7, 2002, p. 28.

[64] NS, July 2007, p. 26.

[65] Australian Safety News, February 1999, p. 50.

[66] Liz Bluff and Richard Johnstone, “The relationship between ‘reasonably practicable’ and risk-management regulation”, AJLL, 18 (3), November 2005, pp. 197-239.

[67] Report on investigation into safety certification and the operations of the WorkCover NSW Licensing Unit, ICAC, Sydney, 2005, p. 25.

[68] ICAC, Report, 2005, p. 31.

[69] Humphrey McQueen. “Making capital tick”, Overland, 170, Autumn 2003, pp. 92-101.

[70] ICAC, Report, 2005, p. 20.

[71] Gianfranco Cresciani, Transfield The First Fifty Years, ABC Books, Sydney, 2006, pp. 114, 161-2, and 170.

[72] RC, Final Report, 2003, vol. 15, pp. 30-36.

[73] Report on investigation into safety certification and training in the NSW construction industry, ICAC, Sydney, 2004, p. 38.