In April 2001 the Minister for Workplace Relations, Tony Abbott, asked the Employment Advocate to provide a report “regarding behaviour in the building industry”. This led to the Cole Royal Commission into the building and construction industry, costing taxpayers $60 million, making it one of the most expensive in Australia’s history.
The Commission was criticised as ‘politically biased and fanatically anti-union’. The Victorian Council for Civil Liberties noted that the ‘perception of a political agenda was reinforced by the method in which the commission gathered evidence and conducted its investigations’. Of particular concern was the curtailment of the rights to legal representation and cross-examination.
Victorian Secretary of the Construction Division of the CFMEU, Martin Kingham, was charged with contempt after failing to produce requested documents detailing the names and personal details of trade unionists who participated in a union training school.
Mr Kingham maintained that he did not have any such documents and did not know if they even existed. He successfully defended the charge and costs were awarded against the Federal Director of Public Prosecutions. Outside the court, Mr Kingham said the political witch-hunt masterminded by Federal Workplace Relations Minister Tony Abbott had been exposed.
“Abbott and Howard cashed up the Cole Royal Commission with $60 million of your money and mine so it could hunt down legitimate unions and workers,” Mr Kingham said.
“Abbott is so obsessed with his anti-union agenda he’ll go to any lengths to stir up trouble. His agenda is to drag people through the courts, to spend taxpayers’ money to tie up the unions in costly legal actions.”
“This bloke is a joke. He ought to be sacked or at least put on a short leash so he can do as little damage as possible to Australian workers and industry until the whole anti-union mob can be tossed out at the next election,” Mr Kingham said.
Although hundreds of allegations of criminal behaviour were referred to the Cole Royal Commission, they resulted in only one conviction — and that involved an employer.
Recommendations from the Royal Commission led to the setting up of the Australian Building and Construction Commission in 2005 to be, using Tony Abbott’s oft-repeated phrase, the “tough cop on the beat”, and it was given powers that greatly exceeded 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”.
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.
In case there was any doubt about the scope of these powers, the law says that the ABCC can override the protections that innocent people have under privacy law. The law may well be unique in also allowing the commission to ignore the confidentiality of cabinet documents and to demand secret national security information held by agencies such as ASIO.
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.”
“The ABCC constitutes a frontal attack on basic legal and democratic rights. It can demand that a worker submit to interrogation on pain of prosecution. Its inspectors can enter building sites, interview anyone without a lawyer present, demand documents and force people to provide information relating to industrial action or internal union business. The watchdog also has the power to initiate prosecutions with fines of up to $110,000 against unions or $22,000 against individuals for taking unlawful industrial action. Disclosing the contents of an ABCC interrogation can lead to six months’ imprisonment, as can refusing to attend a hearing or answer questions.”
In August 2008, Noel Washington, a CFMEU official, was summonsed to appear before Geelong Magistrates Court for refusing to comply with summons issued by the ABCC which alleged that Washington had distributed a flyer that made “derogatory” remarks about a Bovis Lend Lease site manager. (Where was Tim Wilson when we needed him.). Six days before his trial, the DPP dropped the charges.
In December, the Fairfax press reported on the case of a Melbourne academic — which it was prevented under the ABCC’s legislation from even naming — who witnessed a scuffle while walking past a building site and found himself under interrogation by the ABCC and under threat of imprisonment if he revealed his interrogation to anyone.
In its 2008 submission to the Department of Employment, Education and Workplace Relations, a consortium of four unions, estimated that since 2003 more than a quarter of a billion dollars had been spent on the Cole Royal Commission and the establishment and operations of the ABCC. This is claimed to be about 10 times more than the sum received during the same period by Cancer Australia and the Australian Law Reform Commission.
The unions pointed out certain facts.
- The number of deaths have gone up since 2005: from 3.14 per 100,000 workers in 2004 – before the ABCC started – to 4.8 per 100,000 workers in 2007 and 4.27 in 2008.
- Threats of fines, interrogations by the ABCC and imprisonment make it harder for construction workers to take a stand over poor safety.
- Construction workers have to be able to prove that ‘there was an imminent risk to their health and safety’ to avoid fines for stopping work over safety matters.
- The ABCC has a track record of pursuing workers and Occupational Health and Safety Authorities for court investigations where workers take action to defend their safety.
- The ABCC has never taken an employer to court over breaches of Occupational Health and Safety laws.
- Research has shown that where there is a strong union presence at construction workplaces, there are fewer serious injuries and deaths.
- Construction remains one of Australia’s top four most dangerous industries, accounting for 24% – the highest number – of work-related fatalities in 2008, according to the latest available Australian Safety & Compensation Commission report.
- Australia’s Construction Industry Laws have been condemned six times by the International Labour Organisation.
- The ABCC will cost Australian taxpayers $165.4 million for the period 2007-08 to 2011-12, under budget forward estimates.
Adelaide worker Ark Tribe was the first union member to be charged with failing to attend a hearing of the ABCC in 2008. Mr Tribe had been summonsed to appear at the ABCC after he walked off a construction site at Flinders University over safety concerns and if convicted, faced a maximum penalty of six months in prison.
Mr Tribe was found not guilty of the charge in November 2010 and, in 2012, the legal saga finally concluded when Commonwealth prosecutors agreed to pay $105,000 for his legal fees.
In 2010, Julia Gillard removed John Lloyd from his position as head of the ABCC. He moved on to become the director of the Work Reform and Productivity Unit at the Institute of Public Affairs, and then, in January 2013, was appointed as Victoria’s new “red tape commissioner” charged with waging a war on red tape to boost productivity and reduce costs for Victorian businesses.
The ABCC was replaced by Fair Work Building Construction in 2012. The Fair Work Act has delivered significant labour productivity growth and low wage growth, with industrial disputation far below the average level of the Howard years, but Tony Abbott has said “To let the militant unions of this city and state know that the rule of law must always prevail we will re-establish the ABCC and finish the job . . . The law must be supreme, no one is above the law.”
In the leaders’ debate in August 2013, Tony Abbott, when promoting his role in creating the Australian Building and Construction Commission, said:
“That led to the achievement of some $6 billion a year in productivity savings and in cost reductions to consumers in the commercial construction sector,” he told the Brisbane people’s forum.
This claim has been labelled mostly false by Politifact.
Abbott sourced the $6 billion figure from a 2010 report prepared by the Canberra consultancy Econtech for the Master Builders Association. Justice Murray Wilcox in 2009 described an Econtech report on construction industry productivity as “deeply flawed” and that it “ought to be totally disregarded.”
Now Econtech has produced a new report that, according to Bernard Keane, “makes that effort look like the gold standard of intellectual rigour”. He goes on to say “OK, so rubbish reports like this are common as muck, true. But this is more significant because it’s on the basis of stuff like this that the Coalition has committed to reinstitute a major attack on basic rights. And that attack will not just be on the rights of construction industry unionists, but all of us.”