Former federal court chief justice Murray Wilcox has been commissioned by deputy PM Julia Gillard to prepare a review of the powers of the Australian Building and Construction Commission (ABCC) and its integration as a specialist division into Labor's proposed industrial relations umbrella, Fair Work Australia (FWA), in 2010.
In a discussion paper released on October 3, Wilcox argues that the Building and Construction Industry Improvement (BCII) Act — the legislation that established the ABCC — is "discriminatory" against building workers, but he fails to call for its abolition.
Wilcox was appointed to "prepare a report on matters related to the creation" of a specialist division within FWA to specifically police the building and construction industry. The division will replace the ABCC on February 1, 2010.
Wilcox was asked to make recommendations on the powers, accountability, structure, scope and responsibilities of the new "tough cop on the beat", as Gillard described it in May 2007.
Wilcox was not asked whether a specialist division designed specifically to intimidate building workers should be formed or not. Labor made this concession to construction industry bosses in the release of its Forward with Fairness industrial relations policy in April, 2007.
Damning evidence
The evidence presented in Wilcox's discussion paper about the justification for the formation of ABCC, its manipulation of productivity statistics, the practically unbounded scope of its powers and its contravention of International Labour Organisation (ILO) conventions, is damning.
The ABCC was formed on the recommendation of the Cole Royal Commission into the building industry, which reported in February, 2003. Wilcox politely describes the Cole inquiry as "controversial".
While noting that the commission identified 392 issues of allegedly "unlawful conduct", Wilcox points out that"no prosecution action has yet flowed from the Cole Report".
Wilcox also takes the ABCC to task for its contravention of ILO conventions, to which Australia is a signatory. He quotes from the ILO's Freedom of Association Committee, which, in November 2005, criticised both the BCII Act and Work Choices for contravening no fewer than six sections of the Freedom of Association and Protection of the Right to Organise Convention, 1948.
"The Committee was concerned about those sections of the BCII Act that imposed pecuniary penalties on strikers for unlawful industrial action", Wilcox says. "It thought the investigatory provisions of the BCII Act increased the weight of those sections." Wilcox stops short of saying that such draconian powers should be abolished, saying only that they "may warrant attention in the design of the Specialist Division".
Wilcox criticises the ABCC for claiming that its regime has radically increased productivity in the building industry. He points to mistakes of fact made in reports on labour productivity in the construction industry prepared by the econometric modelling company Econtech on behalf of the ABCC in 2007 and 2008.
While emphasising that "many people" argue that the ABCC has led to productivity increases in the construction industry above those seen elsewhere in the economy, Wilcox raises doubts. "Is there any hard evidence for that assertion?", he asks. He also casts doubt on the claim that the ABCC has improved health and safety standards.
On the actual operation of the ABCC, Wilcox paints a picture of a self-justifying and largely unaccountable bully, using its extraordinary power to compel witnesses to talk, to manufacture cases against union officials.
The ABCC has the power to compel workers to give evidence in a closed hearing. It is an offence, punishable by up to six months in jail, to refuse to appear or refuse to answer any questions. Victorian Construction, Forestry, Mining and Energy Union (CFMEU) official Noel Washington is currently facing court action for refusing such a notice to appear.
The ABCC uses its power to compel witnesses to testify as part of elaborate fishing expeditions into the affairs of unions. As Wilcox says, "the people who are interrogated by the ABCC are usually not under suspicion for misconduct: they are ordinarily mere witnesses, summonsed in order to enable the ABCC to determine whether there is a case against someone else and, if so, to provide evidence that the ABCC hopes will lead to a conviction."
Rather than calling for the abolition of such draconian powers, however, Wilcox minces words over "safeguards", calling for greater review of the power by either the president of FWA or an "independent" board established to oversee the special division's operations.
Wilcox also calls for an automatic review by a retired judge of all cases of interrogation. He bases this on the practice of the Victorian Office of Police Integrity (OPI), which exercises similar powers in investigating corruption among cops.
Case for abolition
Dave Noonan, national secretary of the CFMEU, told Green Left Weekly that the Wilcox paper added to the case for the abolition of the ABCC. "It's an important concession to say that the laws discriminate against building workers", Noonan said. "Employers have been attempting to deny it and [ABCC commissioner] John Lloyd says it's not discriminatory."
Noonan dismissed Wilcox's call for greater oversight of the draconian powers of interrogation of the ABCC. "The fundamental thing is that these are bad laws", he said. "If you don't have bad laws then you don't need an elaborate procedure to regulate them. … Any penetrating scrutiny of these laws shows there's no justification for them."
Noonan poured derision on Wilcox's suggestion that the OPI would be a model for supervising the powers of the new specialist division, pointing out that police were bound to enforce the law and were mandated to carry firearms.
"To put that on a footing with people making decisions about whether their workplace is safe or not is simply not comparing apples with apples", he said.
Tim Gooden, secretary of the Geelong and Region Trades and Labour Council, argued that the terms of reference given to Wilcox were too narrow, as he could not recommend that the ABCC be abolished and that no special division be created.
"For us to be completely in line with ILO conventions, to allow workers to organise without the interference of the state, we must completely repeal the BCII Act, abolish the ABCC and have no special division of FWA", Gooden told GLW.
Gooden blamed the ABCC for creating a sense of fear on construction sites — something that a renamed special division would not stop. "Any fines or threats of jail for organising in a union, whether it's approved by some 'independent' person or not", Gooden said, "creates the situation in workplaces where workers will be fearful to raise concerns of safety or intimidation by the boss.
"These laws are intended to reduce workers' involvement in trade unions."
Mobilisations needed
Gooden called for an escalation of the union campaign to abolish the ABCC. "The first thing is that all members of all unions should be involved. Every time there is an injustice against one of our members there should be mobilisations.
Not only to highlight it, but to bring to the public arena the fact that the laws are unjust and need to be fought.
"We also need to take up the fight to big business who lobbied for these laws in the first place", Gooden said. "Until we have an industrial campaign, there's nothing compelling the big end of town to concede anything."
Gooden also noted that almost $1 million has been spent by construction unions around the country in paying fines to the ABCC. "Every dollar paid by the union movement in fines because of the ABCC should be deducted from the unions' contribution to the Labor Party", Gooden said.
"We shouldn't be making payments to the party that's going to fine and jail our members."