Federal Circuit Court of Australia,
Cnr North Quay and Tank Streets, BRISBANE.
Friday, 16 August 2013
Court No. 7, Level 6
9:30am – Judgment by Judge Burnett
ABIGROUP CONTRACTORS PTY LTD v DENNIS STRANO & ORS (Bob Carnegie)
On 2 April 2013 community organiser, Bob Carnegie, attended the final day of his trial for contempt of an order by federal magistrate Michael Jarrett. The court heard that on 5 September 2012 there was an ‘ex-parte’ (=in the absence of) court order made against Bob Carnegie, binding him not to attend an industrial dispute at the ‘Qld Children’s Hospital (QCH) Project’ in South Brisbane.
Workers at QCH were on strike over the failure of the main contractor (Abigroup) to sign an enterprise bargaining agreement. This failure by the employer to bargain fairly with workers on site had led to loss of wages and jobs because subcontractors were undercutting each other and going broke. The dispute began in support of plasterers employed by a subbie, Coastline, who were left working while their company went broke.
Magistrate Jarrett’s order said that Bob Carnegie was not to attend within 100 metres of the entrance or exit gates of the ‘Qld Children’s Hospital (QCH) Project’. During the SEQEB dispute in 1985 workers were not allowed within 50 metres of their workplace. Bosses have even more control of the workplace and its surrounds.
Abigroup is building a paediatric hospital, an academic and research facility and an independent power plant – all under contracts with the Queensland state government. Abigroup is a subsidiary of the construction giant, Lend Lease.
Jarrett’s order said that Bob Carnegie should not attend within this perimeter. However both the court and the applicant (Minter Ellison [for Abigroup] failed to formally specify the penalty Bob Carnegie might face were he to ignore Jarrett’s order.
Union officials were told of the possible consequences (a term of imprisonment) and they obeyed the order for fear of being in criminal contempt of court and incurring a harsh financial penalty for their union or jail for themselves. Five charges allege Bob Carnegie organised persons on a picket line, three charges relate to alleged abusive language and one charge relates to an alleged threat to employees. Before the trial, defence counsel advised it likely that magistrate Burnett will jail Carnegie.
Why did the order by the magistrate lack an endorsement warning Carnegie that, if he were to defy the order, he would risk a jail sentence?
‘Administrative oversight’ speculated magistrate Burnett at one stage during the proceedings on Tuesday (2 April 2013).
A private investigator, Paul Munt, had been hired by Abigroup to film and photograph workers around the hospital site from August 2012 . Munt fronted up on September 4 last year to film an advertised community protest. It was obvious to all what Munt was doing; the former labourer turned private detective spent much of his time on a gantry near the contractor’s office filming workers assembled in the street below. The film showed in court revealed that Munt’s brief was to focus on Bob Carnegie. In court, Abigroup’s barrister, Jim Murdoch, claimed that Mr Carnegie was a central figure in events at the hospital work site community protest last year and not ‘a babe in the woods’.
“He was a key player, if not the key player in the events,” Murdoch told the court.
In reply, defence barrister Morissey said that it seemed curious that, despite alleged breaches of the order on a daily basis, police did not intervene at the protest.
However, on the surface at least, this was a civil matter and, as a result, police may have been reluctant to become embroiled in an industrial dispute without specific orders from the court or police commissioner (after consultation with the minister). Police did attend the QCH site. At one point Abigroup made a complaint and police arrested a worker at 10.30pm one Saturday night, with a bail condition not allowing him within 200 metres of the job. Police did keep an eye on community assemblies that occurred in Graham Street, a side street near the construction site.
Under Queensland’s peaceful assemblies legislation introduced by the Goss Labour Government it is lawful for workers to assemble, at least in theory. If police feel otherwise, they apply to the court claiming the assembly is an impediment to traffic or pedestrians or something like that. It seems they did not have to bother in this case because the Magistrate has power to exclude people from the site, all he need do is pick a number of metres. The assemblies in Graham Street were not pickets in the sense that a picket is designed to impede vehicles or prevent scabs from attending the site. There were no scabs because Abigroup shut down the site and appeared prepared to wait until loss of wages forced workers back. Some workers told me that if the dispute had lasted any longer they would have lost their houses because their mortgage payments were so far in arrears. This is not industrial conscription but it is getting close. We’ll have to wait till the federal government abolishes enterprise bargaining to find ourselves even closer to industrial conscription, at least some of us.
On Friday 31 August 2012, the Brisbane Activist Centre put out the following appeal:
“Monday is a vital day for the dispute. All concerned workers and citizens who can make it are urged to support the QCH workers on Monday. We need every available person to be at Graham St South Brisbane at 5:30am Monday morning. Abi(group) are seeking to have subcontractors march their workforces across the line – your support is vital.”
The word did not get out beyond a few stalwarts. There were small community protests – one with a local musician playing for the workers and a few people from local activist groups turning up to support the unions’ bid for an EBA.
On one occasion an agent provocateur was sent in by Minter Ellison (for Abigroup) to try to spark a response from the workers. Munt filmed a brief encounter showing Bob Carnegie remonstrating with the provocateur. In the film shown in court, Bob told workers to keep away as it was obvious the thug had been sent there by the employer to provoke an incident. Police took no action. A couple of contempt charges arose from this incident so Minter Ellison’s tactic was successful to the extent that it provided a legal platform for them to later accuse Bob Carnegie of contempt of a court order for him to remain 100 metres from the entry and exit of the QCH site.
Why did union officials withdraw?
It seems likely that the legal team for Abigroup (Minter Ellison) were focussed on what the union would do and so they made sure the full consequences of contempt (jail) was known to the officials. It has been a long time since a union official has been jailed in Australia – that was the state secretary of the Manufacturing Workers Union, Craig Johnston, in Victoria was jailed for defending the jobs of locked out AMWU members. Johnston, without ALP support, ended up in jail. Yet five thousand workers stood outside the court with placards claiming Johnston’s innocence while inside his lawyers were pleading guilty to charges of affray. Such a plea resulted in temporary mercy from the court through a plea bargain with the prosecution.
However lawyers for Johnston underestimated the resolve of the employers and the establishment in Victoria. They were determined to make an example of him. He was sentenced to two years and nine months’ jail, with nine months to be served prior to parole. There were threats to jail Ark Tribe, a building worker from South Australia, however a national union campaign led by the CMFEU against the Australian Building and Construction Commission prevented that from happening.
What discussions occurred between the parties to the dispute on the workers side about this? No union official or organiser defied the order. Carnegie ignored the geographic exclusion from the site attending several meetings and gatherings of striking workers. So did other members of the community concerned about the refusal by the employer, Abigroup, to sign an enterprise bargaining agreement with workers at the QCH site as required under Australia’s industrial relations laws. FairWork Australia ignored this. Despite the fact that Abigroup was avoiding its responsibilities to ensure employees receive their minimum entitlements from subbies. Abigroup was the benefactor of the unrealistically low tenders that the plasterer subcontractors were submitting. It was inevitable that a subbie would go broke and that workers would not be paid. And this what happened and brought on the dispute.
Abigroup decided to close the site and hang back in the dispute after consultation with the Queensland attorney general who began pushing for stronger laws to set up an industrial watchdog to monitor workers and their unions – similar to the Australian Building and Construction Commission (ABCC) set up by the Howard government and continued by Labor in government. The Attorney general said:
“This is about ensuring major infrastructure projects such as hospitals and schools can be completed on time and budget without unnecessary disruption or expense to Queenslanders.”
Jarrod Bleijie, said he was concerned by ABS statistics for the September quarter which showed Queensland industrial action accounted for 46 per cent of working days lost to disputes in the country. Queensland is where the majority of attacks against workers are coming from. Also Queensland has big infrastructure projects where workers need protection from cost cutting and safety infringements.
Abigroup had their legal team begin surveillance of the workers and their supporters from the community. As it turns out there are plenty of laws at Abigroup and magistrates’ disposal to see off the union. Labor’s FairWork Australia was a starting point to issue injunctions against the union, organisers, and of course the seaman with a bad back, Bob Carnegie.
“This is one of my proudest days as a union man, it’s one of my proudest days as a socialist, as a human being bound with you in struggle, ” Mr Carnegie said in the footage.
Minter Ellison (for Abigroup) called their private investigator, Paul Munt to the stand to tell the court he shot scenes from a gantry above Graham St and down on the street. Munt claimed that a firm called Verifact employed him on September 4 last year to observe and film activities around the Queensland Children’s Hospital site. Munt was himself a building worker and appeared uncomfortable in the role of investigator and informant. At one stage he refused to go along with barrister Murdoch who wanted him repeatedly to specify how close Bob Carnegie was to what he referred to as ‘management gate’. Without any irony, magistrate Burnett had adopted the terminology of ‘Management gate’ and ‘Workers gate’. The magistrate said these terms would distinguish between the two gates in Graham Street and thereby alleviate confusion in the court record.
Abigroup had put up fences on the main road and the side street – these fences impeded pedestrian traffic making it impossible for workers and passers-by to avoid going on the road. Abigroup created a dangerous situation because Vulture Street is a busy thoroughfare especially at peak hour when cars, trucks, bicycles and pedestrians converge on their way to the CBD. Police turned a blind eye, health and safety authorities seemed not to care, at least nothing was done about it during the dispute which lasted nine weeks.
Private investigator Munt said he was told to observe and film activities around the Queensland Children’s Hospital site. The court admitted his evidence without asking who edited the film and who recorded it on DVD. On one occasion Paul Munt identified a person as Bob Carnegie even though a few moments later he pointed out Carnegie who was wearing different clothes. It was the fastest costume change in industrial history. All this went un-remarked by counsel on either side or by the magistrate. They seemed oblivious to contradictory timestamps on the film data files and those shown on screen. But then lawyers are not filmmakers, are they? Nevertheless you would think the rules of evidence would require some process of authentication that the film was actually shot on that day and had not been doctored to improve applicant Abigroup’s case. Perhaps there was a gentleman’s agreement done in secret.
Some footage showed Bob Carnegie in a public assembly outside the grounds of Somerville House School about 20 metres from management gate. Beside Carnegie was Brian Boyd, something that seemed to make barrister Murdoch for Abigroup positively salivate as he sought confirmation from Munt that it was indeed the secretary of the Victorian Trades Hall Council.
One of the Abigroup site managers, Gildea, told the court that the private investigator firm, Verifact, communicated directly with law firm Minter Ellison and Abigroup senior management. When asked under cross-examination by defence barrister Peter Morrissey if Verifact was engaged for the purposes of future litigation, Gildea said: “In my opinion, yes.”
On 19 September 2012 Munt filmed Bob Carnegie telling workers: “We’re free men and we have a right to protest in this country. Carnegie said: “We’re going to be union … we’re not going to let them get away with slave labour.” Apparently these statements are untrue, there are laws that prevent us from standing outside our workplaces and laws to make us slaves. Yet many would agree with Carnegie’s sentiments. Said in the context of a huge multinational contracted by government to manage construction of the Queensland Childrens’ Hospital, Carnegie has been given opportunity to sit in court and contemplate the accuracy of his statement. It is little wonder how he and his partner were visibly distressed throughout the proceedings.
Interview with Bob Carnegie
Listeners may be wondering why would Paradigm Shift (4ZZZ fm 102.1 fridays at noon) be taking such close interest in Bob Carnegie’s case. Apart from the obvious infringements by Abigroup of democratic rights for workers and their supporters, the Paradigm Shift has its own involvement in the case.
This is because a 4ZZZ reporter, Steve Riggall, turned up in court one day to hear an interview he recorded with Bob Carnegie being played by barrister Murdoch for Abigroup. During the interview, Steve Riggall had asked Bob about Abigroup’s legal injunctions. Bob Carnegie said that numerous conditions had been imposed by the court on where he could go and what he could say and do. Carnegie explained how injunctions were maintained against unions and activists associated with the protest. In doing so Carnegie made a distinction between the community protest at QCH and a union picket. Abigroup had set up a labour hire company to break the workers. Bob claimed that the law was on Abigroup’s side. He may have been unaware of the supposed protection given to peaceful assemblies under Queensland’s Peaceful Assemblies Act. Carnegie is a seaman not a lawyer. Carnegie’s Victorian barrister did not raise it as part of the defence, he too may have been unaware of the unique history that opposition to Bjelke-Petersen’s ban on street marches or he may have thought state laws did not afford exemption from Commonwealth industrial laws. What of the implied right of free speech in the constitution? What takes precedence when laws are in conflict with each other? We were never going to find out from this case. Neither union nor Carnegie developed a legal defence based on the right of assembly or free speech. Carnegie’s lawyers pursued a technical defence based on the failure of Abigroup and the court to specify the jail term Bob Carnegie is facing.
In the 4ZZZ interview, Carnegie said that the dispute was covered under the FairWork Act but did not see how that applied to him because he was not a worker on site and was not a member or employed by the union. Looking back at our records it seems clear that Minter Ellison downloaded a podcast of the broadcast, made it available to barrister Murdoch who played it in court to demonstrate how flagrant was Carnegie’s contempt for the industrial laws.
No public campaign has yet been waged by the unions over this case, at least not in the way that the Construction Forestry Mining & Energy Union (CFMEU) waged a public campaign when Ark Tribe was threatened with jail. The charges against Ark Tribe were laid by the Australian Building and Construction Commission (ABCC) set up under the Howard Liberal National government and continued under the federal Labor government, albeit in a different form. In this case the work of industrial spying by the ABCC has been outsourced to Minter Ellison (for Abigroup) who employ characters like Paul Munt (Verifact) to film workers protesting loss of jobs and conditions.
Magistrate Burnett will hand down a verdict on Friday 16 August 2013 after a delay of four months.
16 August 2013
[A big thanks to Matt, Steve and the crew at the 4ZZZ newsroom]
After the Waterfront – the workers are quiet by LeftPress Collective