(this is a short version)
By Simon Millar 14/8/14
The Liberal & National Party dominated senate will vote on a raft of amendments to the Fair Work Act in July 2015 that includes the Building and Construction (Fair and Lawful Building Sites) Code. The Code will be voted in as a piece of retrospective legislation. This means it will be back dated to come into practice on April 24th 2014. This is so that the code will apply to all new contracting Enterprise Bargaining Agreement’s (EBA’s) due to be negotiated all construction union with employers.
Any employer who does not have a code compliant EBA will not be able to tender or supply labour on government jobs. Employers are already drawing up code compliant EBA’s which will apply to both government and non- government work. If this code is successfully implemented it will apply to over 1,025,600 construction workers.
What will the code do?
The code will make all clauses that restrict the use of contractor’s non code compliant. So the current clause that requires that any contractor brought onsite be paid the same wages and conditions will be breaking the code. It is also non code compliant for the unions to request payslips from employers to check wages and entitlements.
In practice a contractor can get a legal EBA voted up with only a handful of loyal in house employees. This EBA is then binding on all future employees and under the future rules of the code can be marched onto any building site.
How bad can this EBA be? It only has to pass the Better Off Overall Test known as BOOTS test introduced by the Australian Labour Party (ALP) in 2009. This test applied by the Fair Work Commission compares the proposed EBA not with the previous EBA but with the Award. In a worst case scenario using an Electricians wages an employer could set wages at $25 an hour and still pass BOOTS with flying colours as the highest hourly wages provided for by the 2010 Electrical Award is $23.49.
The flexibility clause introduced again by the ALP which must be included in every EBA gives the employer the right to approach individuals and get them to sign an agreement that varies anything from penalty rates to working hours. This clause can achieve what John Howard wanted to achieve with individual contracts. Combined with code it becomes dynamite.
The code makes it non code compliant to have EBA clauses that proscribe lump sum payments. Lump sum payments effectively turn a worker into a salaried employee. The pressure on individual workers who are approached by their employer to accept loses in wages and conditions or face the dole queue will be enormous.
The code also does away with current EBA restrictions on the use of part time and casual labour.
Non-compliant clauses include a whole raft of provisions in the current EBA that cover, overtime, RDO’s, working shifts. If this code is allowed to govern construction workers lives, employers will have the right to makes us work when they want for as long as long.
Gone are lock down weekends, the ability to say no to working an RDO, the ability to say no to a shift change and the ability the limit the amount of overtime beyond what is outline in the Award.
The code removes any EBA clauses that stipulate quotas of mature age workers, women or apprentice ratio’s. All are deemed unacceptable under the catch all phrase ‘that this restricts the employer’s ability to manage its business’.
The code of course attacks union representation. In fact the code cannot even bring itself to mention unions by name; instead it uses the term building association. They code further restricts the right of union access to members. Union representatives can no longer have any role in onsite inductions or hold onsite meetings which encourage workers to join the union. A delegate can no longer carry out compliance checks to ensure all members are being correctly paid their wages and entitlements. Anything onsite such as union posters, leaflets, RDO calendars, stickers, flags etc that encourage workers to join a union are against the code.
On top of all this Tony Abbott has created a revamped Building Industry watchdog headed up by anti-union ideologue Nigel Hadgkiss. This watchdog will have more money and powers than ever before to ensure compliance with the code. There can be no doubt that the long term aim of this watchdog is to remove unions from work-sites altogether.
What can we do?
These are just the broad outlines. Seventy six clauses in the Victorian ETU contracting EBA are non-code compliant. Tony Abbott and the employer organisations who have feed him these polices have been clear in what they want this code and associated amendments to the Fair Work Act to achieve. Big cuts to wages and conditions, the end of penalty rates and union strength reduced to next to nothing. In fact they would prefer unions disappeared altogether.
This upcoming attack by Tony Abbott and Liberal has the ability to destroy 50 years of hard won conditions in a matter of years. He is banking on our weakness and that the fresh new layers of construction workers will not stick together and fight. That we will allow ourselves to robbed and walked over by those who have more than they could ever hope to spend. If we want see our and the rest of Australia wages driven downwards in a race to the bottom all we have to do is nothing.
But I believe there are more than enough working men and women of character in this country and amongst construction workers in particular that we can not only fight and win, we can use this battle to get back on the front foot. Now is the time to prepare, to discuss strategies and tactics and be ready to do whatever it takes to defend our own livelihoods and our fellow worker’s future.
Here are some suggested actions of mine
Step one: The construction unions need to do a mass mail-out to all members informing them of the code and calling them to mass meetings. Most members do not even know about the code.
Step two: Conduct a protracted nation industrial campaign that throws the construction industry into chaos. We should be fighting right now to stop this code even getting on the table. Revolving overtime bans, health and safety audits, mass sick days, rallies, go slows. It time to hit the construction bosses in the only place they care about, their bank accounts.
I am well aware we have union leaderships that bar a few exception will not carry out any strategy except the one guaranteed to lose. Do nothing and elect the ALP. These officials only care about saving their own jobs. The rank & file construction worker cannot sit back and allow this to happen.
Dare to struggle dare to win if you don’t fight you lose.
If you would like to read a far more detailed account of the code, it history and it impact please contact me on sa_miller and I will send you a copy of the full version.
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