From October 1, building industry workers are likely to be separated from the main industrial relations legislation that covers other workers. Federal legislation to set up a new coercive Australian Building and Construction Commission (ABCC) to police building workers was passed by the House of Representatives on August 11.
The Building and Construction Industry Improvement Bill 2005 is expected to be passed by the Senate after it begins sitting on September 5, ready for implementation from October 1.
Prime Minister John Howard's government is in a hurry to pass the bill before too many construction companies sign new enterprise agreements with the Construction, Forestry, Mining and Energy Union (CFMEU) and other construction industry unions.
In March, workplace relations minister Kevin Andrews wrote to construction companies urging them not to sign new enterprise agreements with the unions until the ABCC legislation is passed. Many construction companies ignored the advice, however some companies are holding out for the new laws.
Victorian secretary of the CFMEU's FEDFA (Federated Engine Drivers' and Firemen's Association) division Tommy Watson told Green Left Weekly that the Howard government's building industry law is designed to "completely isolate [the construction unions] from the rest of the trade union movement. [The government is] going to cause as much trouble as they can in the building and construction industry and then say look at the trouble these people in the building trades are causing, we've got to bring in some of these laws against all unions."
'Chop us up'
"Under the ABCC, construction workers and their unions will have their own special legislation, we'll have our own commissioners and we'll have our own commission", Watson told GLW. "It will be a separate panel in the industrial relations commission, so when we appear it will be before the ABCC. The government's taking us completely out of the system to isolate us and chop us up."
The legislation will be retrospective to March 9, Watson pointed out. The existing Building Industry Taskforce, which will become part of the ABCC, has been "snooping around" building sites all year to get evidence of industrial activity which is currently lawful but will be illegal under the new legislation.
The ABCC will be given extensive powers. The ABCC's cops will have the right to go onto any building site to interview any worker. The ABCC can give workers and union officials 14 days' notice in writing that they must provide all documents requested by the commission and answer all questions, or they risk jail.
"I could get asked 50 questions and answer 49 of them. The 50th question might be to give someone up ... If you don't give your mate up, don't give fellow workers up, you could get six months in jail", Watson warned. "We've had 23 murders in Victoria, and none of the accused were forced to answer questions. But building workers are going to be forced to answer questions over industrial matters. We'll have less rights than criminals."
The latest version of the ABCC bill is even more draconian than the original that was knocked back by the previous Senate, Watson explained. Under the original legislation, if a construction worker or a union official refused to answer questions, the penalty was a three-month jail term or a $2000 fine for the first offence.
"If you refuse to answer questions now, it's six months' jail. The option of a suspended sentence or a fine has been taken out. The only option a judge will have is an immediate jail sentence.
"The ABCC will be able to enter any premises other than a residential premises. So they can enter union offices at any time. They can ask you any questions that they believe are relevant. This is industrial law we're talking about, not terrorism."
Watson pointed out that the existing powers of the Building Industry Taskforce, which include suspended jail sentences for not answering questions, have "never [been] used once, and yet [the government has] increased its powers. It's intimidation. They want to force workers to give up workers and give up the union, or go to jail", he said.
The Australian Democrats amended the original legislation to prevent the ABCC from forcing a person to answer questions about trivial or minor issues. This small curb on the ABCC's powers has been removed in the latest legislation.
Watson told GLW that the ABCC will have "unlimited money — our money, our taxes — to pursue the union. What the government wants is to get us in court every day of the week over trivial issues to bleed us dry, and at the same time keeping us away from our members. It's all about de-unionisation."
"[Under the legislation] there's no right to take industrial action", Watson warned. "The only industrial action you can take under the act is when the employer agrees in writing prior to it talking place. No employer is going to do that. If the employer doesn't agree, and the union hasn't abided by the secret ballot legislation (unless there's an immediate risk to health and safety), all industrial action is unlawful — even stop-work meetings, rallies. Individual unionists can be fined $22,000, and the union $110,000, for each action."
The legislation would also ban "constitutionally connected action", Watson noted. The union will be responsible for the action of each of its members "whether we have an organiser present or not", said Watson. "If our members take action and we don't know anything about it, the union will be responsible."
This is a recipe for government and employer agent provocateurs to set up the union. "There will be plants all over the place", Watson added.
Where the Building and Construction Industry Improvement Bill is silent on an issue — pattern bargaining, protected action, right of entry, freedom of association — building workers will be covered by Howard's planned industrial relations laws.
The building industry bill is the product of a process which began when the federal government established a royal commission to investigate "corruption" and "thuggery" in the industry. Despite a well-financed and intensive investigation, the royal commission failed to uncover evidence of corruption or thuggery. Nevertheless, the commission recommended that pattern bargaining be made outlawed and that unions officials right of entry to building sites be restricted.
At the time, building unions warned that industrial laws which discriminated against building workers would be extended to all workers. This prediction is coming true, with the federal government planning to ban pattern bargaining for all workers and restrict the right of entry for all unions. Watson thinks that the government will extend the draconian provisions of the Building and Construction Industry Improvement Bill to the rest of the work force.
The legislation also allows the ABCC to sue unions for "damage" caused by industrial action. "The ABCC can come in, and against the wishes of the employer and the union, look at what 'damage' was caused, and [initiate legal action against the union] for unlimited damages", Watson pointed out.
The federal government's National Code of Practice for the Construction Industry is incorporated into the proposed building industry legislation. All enterprise agreements have to be compliant with the code. The code forces employers to offer Australian Workplace Agreements, even if a group of workers want a collective agreement and the employer agrees.
The code of practice rules out enterprise agreements that give preference in employment to union members, give preference to sub-contractors that have union agreements, give unions access to the induction process for new workers, give union delegate access to wage records, give right of entry to union officials and compel employers to pay site payments that may be higher than those in the award.
"The whole philosophy of this government is to get us away from the collective agreement and make us individuals and if you want to be part of the collective, you're considered to be 'un-Australian' or holding back the economy", Watson told GLW.