ABCC: The devil in the detail
The enormous legal clamp applied to some of our most effective unions has just been yanked a solid notch tighter. In December, the Turnbull government finally managed to manoeuvre a law through the Senate to reinstate the anti-union task force of the Howard era, the Australian Building and Construction Commission.
A look at the detail of the law shows that, despite some amendments on the way through parliament, the result is a serious attack on construction workers and our unions.
Higher fines, more restrictions
Under the new law, penalties will more than triple for breaches of the laws that restrict our right to take industrial action. Over the past decade, the CFMEU has been hit with $8 million in fines (plus millions more in legal costs) for fighting industrial disputes to maintain safety and decent wages and conditions.
The laws that the Liberals inherited from Labor in 2013 (including a slightly watered down version of the ABCC), are some of the most restrictive laws about industrial action found in any parliamentary democracy. For instance, bosses (or the ABCC) can sue for any losses caused by a strike unless it is legally “protected”. Such “protected action” can happen only once every few years, when an enterprise agreement expires.
The ABCC law further narrows this legal window. Industrial action is not legally protected if it is organised or happens “in concert” with someone other than a direct employee or a union organiser. For instance, the involvement of other unions, or workers other than direct employees – who, for instance, might refuse to cross a picket line – can now trigger damages claims, to deter otherwise legal industrial action.
Picketing is not illegal under federal workplace laws. Employers faced with pickets usually seek relief by applying to state courts for an injunction – with the threat of colossal fines (and/or police action) if the injunction is breached. The ABCC makes this process easier by declaring picketing unlawful, and giving any person the right to apply for an injunction to ban pickets or the threat of pickets.
Contractors
It is now unlawful to do anything to attempt to “coerce” a building company to engage or not engage a particular contractor on a project. So if a builder gets an undercutting subcontractor in to do a job, the union is meant simply to tut-tut from the side. Outside the very limited window of protected industrial action, to push for a company to sign a union-approved enterprise agreement is also unlawful.
Extending the reach of the ABCC
The act extends the ABCC’s powers beyond the construction industry to “ancillary sites” where material is prepared or fabricated for construction sites, and to the transport networks that get material to a building site. In response to lobbying from resource corporations, offshore resource sites and shipping are also now covered.
Construction code
The biggest threat to unions from the ABCC legislation is the federal government construction code that accompanies it. Companies that tender for government work will have to show that all their enterprise agreements – on government jobs and elsewhere – meet a strict code of compliance. Among other things, the code:
Prohibits any restriction on hours or days of work. This means that the industry shutdowns at Christmas and Easter, the regular rostered days off enshrined in the union calendar and clauses prohibiting excessive overtime will be banned.
Prohibits any restriction on the type of employment offered – so a clause encouraging full time permanent work will be banned, along with casual conversion clauses.
Prohibits the employment of full time union shop stewards. Having a full time union rep who can keep track of the multiple subcontractors that come and go from a building site is essential to making sure that the wages, conditions and safety standards set out in laws and enterprise agreements are actually enforced.
Prohibits any restriction on subcontracting – so companies can avoid their obligations under an enterprise agreement by sourcing their labour from cut price companies.
Senate amendments and the road ahead
The most significant amendment to the legislation on its way through the Senate was a two-year delay in the implementation of the construction code. This concession has been widely condemned by the construction industry bosses. The Master Builders Association has lamented the “confusion and angst” among employers who have refused to sign the CFMEU pattern agreement (which does not comply with the code), because they expected that passing the ABCC law would force other bosses to adopt a similar stance. Instead, the two-year window will enable the CFMEU to organise protected industrial action against these builders at the union’s leisure, just as the current boom in apartment construction peaks.
A further series of amendments from various cross-benchers will, in theory, load the ABCC up with work outside of its core mandate of cracking down on construction workers and our unions. It is now also supposed to investigate rip-offs and non-payments affecting workers and subcontractors in the industry, for instance, as well as to monitor Australian content in building materials. It will also have to account more often for its actions to the courts, the Commonwealth ombudsman, and the Parliament.
This will no doubt irritate many, not least ABCC boss and head union hunter Nigel Hadgkiss. But none of the amendments alter the fact that the new law puts a bunch of further challenges in the way of the union tackling its key tasks: holding on to the well-paid, well-unionised sectors of the industry, and organising the unorganised in the other sectors.
No doubt there will be further manoeuvring in the Senate, with the MBA pushing for amendments to undo the effect of some of the concessions agreed to by the government to push the legislation through. But for the union movement, commentary and lobbying about further legislative tweaks can’t be the be all and end all of an effective campaign.
In recent times, construction unions have demonstrated – in the cases of Ark Tribe, Noel Washington and Bob Carnegie – that a campaign of public defiance can cause political problems for the bosses and politicians, and get results. We have to build on this defiance to take on and ultimately break the legal shackles that our rulers keep tightening.
