The Senate has passed the so-called ‘registered organisations commission bill’, with only Jacqui Lambi joining the Greens and Labor to vote against it (see also Michelle Grattan). Now the game moves to proposed legislation to restore the Australian Building Construction Commission, which I’ll examine below.
Essentially the government succeeded with the registered organisations commission bill by doing deals with The Nick Xenephon Team (NXT) and Derryn Hinch on whistle-blower provisions. Hinch reckons the whistle-blower provisions are the best in the world, and the Government has agreed to extend them to the corporate and government sectors by 2018.
Labor has argued that the governance of unions should be undertaken by ASIC. Their plan was to provide ASIC with extra funding. Their worry is that a small entity dedicated to unions could become rabidly anti-union, by pressure or appointing a ‘suitable’ head. Some support is given to this notion by the performance of the Fair Work Building Inspectorate (FWBI), according to David Peetz.
David Peetz is Professor of Employment Relations at the Centre for Work, Organisation and Wellbeing in the Griffith Business School, Griffith University. As such he is a scholar of work place relation. I think he may have supervised my son Mark’s honours thesis, which was on the history of the then mining union. I claim no knowledge on industrial relations, but would give Peetz significant credibility. Back in March Peetz told the ABC that:
- it’s much more about changing the balance between unions and employers than it is about dealing with productivity of industrial action or corruption.
Peetz has an instructive piece on John Menadue’s blog, written last week. He details the likely voting patterns in the Senate, where much will depend on NXT and probably Hinch, who seems to be becoming an NXT fellow traveler. Peetz thinks the Senate is a better bet for the Government than a joint sitting.
Hinch is keen on a broad anti-corruption body. Peetz says that the ABCC bill does nothing about corruption, only about imposing restrictions on union access to construction workplaces.
Xenophon wants stronger occupational health and safety legislation, higher standards on imported building products, and better protections for payments to subcontractors in the industry. He also has concerns about aspects of the Building Industry Code attached to the ABCC bill which Xenophon thinks would give too much power to one body, one that would be ‘investigator and assessor of compliance and…responsible for…sanctions’. Peetz:
- As the likely head of a renewed ABCC is the current head of the Fair Work Building Inspectorate (known as the FWBC), or a protégé thereof, such concern is well justified. The FWBC these days acts as a determined antagonist of the unions, criticised by the Federal Court for ‘abuse of process’ and by the Commonwealth Ombudsman for its behaviour in compulsory examinations of workers. Subsequently, it emerged that FWBC last year withdrew funding provided to the Ombudsman to monitor FWBC’s use of coercive powers.
Peetz says that productivity gains are being spruiked by the government and industry, but this relies on an old ABCC-commissioned report which has been discredited. Peetz says much of the sting in the legislation is in the Building Code and quotes industrial reporter Paul Karp approvingly:
- ‘Compared to the ABCC’s long war of attrition, the building code’s effect is viral and immediate’. It actively punishes employers who do not adopt the government’s industrial agenda. Much (but not all) of what the revived ABCC would do can already be done by the current body, the FWBC.
- The new Building Code, however, would give the head of the ABCC much greater power to punish employers who did not abide by ABCC policy than is presently available, or would be available through the ABCC legislation on its own.
Peetz says that the Building Code will be a ‘legislative instrument’ that can be disallowed by the Senate. Ironically, the bill may pass and then have it’s sharpest teeth pulled subsequently by the Senate.
I’ll accept as given that there is union intimidation and thuggery in the building industry. Such was found by the Heydon royal commission, and I haven’t heard anyone in Labor deny it. Yet the proposed coercive powers have brought the unions and the Law Council together in opposition. Liam McLoughlin says every voter should read a comment made by George Williams about the ABCC in 2010:
- “By any standard, the ABCC is a remarkable body. Described as a ”tough cop on the beat”, it has powers that greatly exceed those given to any police officer in the nation.
The ABCC can force people to answer questions in secret and to reveal documents that relate to any of its investigations. This negates a person’s right to silence. It also removes their privilege against self-incrimination, a protection that has been described by the High Court as a ”cardinal principle of our system of justice” and a ”bulwark of liberty”.
Disobeying the ABCC is punishable by six months in jail…
There are no limits on the type of information that can be sought by the ABCC. A person can be compelled to hand over personal phone and email records, reveal memberships of a union or political party, and report on private meetings.
This can be applied to anyone. Workers can be brought in, not because they are suspected of wrongdoing, but to report on the activities of their co-workers. Family members, including young children, can be told to reveal information about a parent in the building industry…
The problem is not just one of extraordinary power, but also that the expected safeguards have been stripped away. Unlike other bodies that question people, the ABCC does not need a warrant from a judicial officer or other independent person. The normal grounds of reviewing its decisions have also been excluded, meaning federal law cannot be used to argue that the ABCC has breached the rules of natural justice or made a decision in bad faith.
What is most surprising is this unchecked authority is not directed at serious crime. The ABCC’s mandate is instead to investigate industrial matters in the construction industry. This means it can use its coercive powers to inquire into minor breaches of industrial awards, including the proper taking of sick leave and rest breaks.
Despite its limited role, the ABCC has been given powers that would not be contemplated for the police by a state government bent on winning a law and order auction. This should be a concern to everyone, not just people working in the building industry. A dangerous precedent has been set that could well be applied elsewhere…
The ABCC has no place in a modern, fair system of industrial relations, let alone in a nation that prides itself on political and individual freedoms.”
Gerard Phillips a partner in the Labour, Employment and Workplace Safety Group at K&L Gates, a global law firm explains why the coercive powers matter in the AFR (probably paywalled):
- In his recently concluded Royal Commission, Justice Dyson Heydon revealed that widespread misconduct, thuggery, bullying and threats of violence were commonplace events in the construction industry. Clearly when unlawful activity takes place at building and construction sites, those who witness it understand – too well – the cost of cooperating with the authorities. This and a combination of the code of silence normally seen in criminal gangs makes the investigation and prosecution of these matters even more difficult.
He says the human cost is immense:
- Young engineers and construction workers entering this industry are quickly brutalised and have to make up their mind about going along with this culture, defying it or leaving the industry altogether. This is a miserable picture for 21st-century Australia and the community deserves better from its politicians. These are the people whom the ABCC bill will protect: the future workers in the construction industry.
He says that:
- the person subject to the exercise of the power in the ABCC bill is given the benefit of a derivative use indemnity. Namely, none of the evidence so supplied can then be used against that person.
That would be small comfort to someone who has been forced to dob on their dad.
Whatever the problems are, I’m inclined to think that such a deprivation of rights is not the answer. Here’s a speech by Scott Ludlam for The Greens vs ABCC. Here’s Labor’s Plan for Better Union Governance.
Our representatives in Canberra will be earning their money wrapping their minds around all this. Let’s hope the outcome leads to a more civil society.
For now I left here other links I’d gathered in the run-up to the election. Some may be pay-walled.
- Michelle Grattan: Turnbull ultimatum
- Bernard Keane: Does construction need a watchdog with security agency powers? He says the evidence is thin on the ground.
- Turnbull Ally Accidentally Implies PM Misrepresented ABCC Laws
- Bernard Keane: When will the government stop lying about the ABCC?
- Ewin Hannan: Does our building industry watchdog need sharper teeth?
- Labor Herald: Even the Governor-General has been misled, claims Dreyfus
- Nick Toscano: Trade unions lash out at PM Malcolm Turnbull’s ‘myths’ about building industry
- Peter Lewis: Turnbull might pull the DD trigger and shoot himself in the foot