Government building code: pressure increases on construction unions

The industrial pressure is increasing in the construction industry. Employers are pushing to amend enterprise agreements so that they comply with the government’s anti-union building code before it comes into full operation on 1 September.

As well as national strikes and rallies by building industry unions against the government’s anti-worker agenda, in June there were two significant votes on code-compliant agreements featuring a raft of anti-union provisions. These will be the first of many attempts to scrap longstanding conditions to comply with the code. It’s worth having a look at how they played out.

In late June a hundred workers at a major Sydney concrete company, Boral subsidiary De Martin & Gasparini (DMG), withstood intense management pressure and voted against a code-compliant agreement. According to the Australian, the proposed agreement was a rehash of a previous non-union agreement that management had tried to ram through in 2014.

That agreement cut away conversion clauses for casual workers, removed protection for rostered days off and fixed weekends, and gutted the crucial contracting clause. Without a contracting clause, a company can simply evade its obligations under an agreement by sourcing workers from a labour hire firm, at cut-price wages and conditions. All of these attacks are mandated by the federal government’s building code.

On that occasion, the workers’ vote against the cut-price agreement was followed up with a five-day strike that forced management to sign a union agreement.

In the lead-up to the full implementation of the building code, DMG management have renewed their attempts to overturn this agreement, threatening that the company will close down and sack workers unless they vote for a new, code-compliant deal. Despite these threats, on 29 June, DMG workers voted by nearly two to one – 64 votes to 34 – to reject the proposed agreement.

It’s an important result. A well-unionised group of workers, with a recent history of industrial action, has put a major obstacle in the way of Boral – one of the biggest players in the industry – getting a code-compliant agreement in place before the government’s 1 September deadline.

The news was not so good in the other high profile ballot. In early June, New South Wales workers at Lendlease Engineering (the former civil contractors known as Abigroup) voted by a narrow margin – 50 to 46 – to approve a new, code-compliant agreement.

If an employer was ever going to get an agreement voted up over union opposition, it would be in a situation like this. The unions have always been weaker in civil construction, where the Australian Workers Union does a brisk business in cut-price deals. Many of the requirements of the building code – for instance, writing the union out of any explicit role in enforcing the agreement, and a threadbare contracting clause – are already features of previous Abigroup/Lend Lease agreements. So workers can feel they have less to lose by complying with the code.

Even here, though, the bosses needed some seriously shonky tactics to get the deal over the line. Under the Fair Work Act, an employer must “take all reasonable steps”, including providing a seven-day “access period”, to ensure that workers are fully informed about an enterprise agreement before voting.

The “reasonable steps” taken by management in this case consisted of lying to the union by telling it that nothing would happen until after Easter; handing out a 49-page legal document to workers late on the Thursday before the Easter long weekend, triggering the seven-day “access period”; emailing the proposed agreement to the union only after business hours that same day; holding a couple of management-sponsored sessions to promote the deal during the week that followed; and holding a vote via SMS over the next weekend (the Anzac Day long weekend) which management (but not the union) could track online.

Fair Work Commissioner Julius Roe overruled union objections to all this and approved the agreement. The CFMEU is appealing.

The agreement gives a snapshot of what a “code-compliant” future would look like for construction workers. In the previous agreement, the company couldn’t introduce seven-day-a-week rostering unless the workers and their reps approved. This requirement is now replaced by a minimal requirement for non-binding “consultation”. Time is money in construction. If the bosses could work the sites every day of the year, they would. This is why the previous agreement had strict conditions that had to be met before a work site could open on a fixed rostered day off or a “no work Saturday”. Those conditions are now gone. In fact, there’s no requirement that workers actually take rostered days off – they can now cash them in, which, under pressure from management’s tight deadlines, many may feel compelled to do.

They will need the extra cash. The agreement cuts site allowance on many jobs by $1 per hour, cuts travel allowance on smaller jobs (up to $250 million) by $10 per day to $25, and freezes the hourly rate until October next year. This wage cutting is not mandated by the government’s building code. But it’s the sort of measure which plenty of bosses will try on, claiming that a raft of changes are made necessary by the implentation of the code.

Facilities for employee reps such as access to a meeting room and a lockable cabinet are removed. Everything on the union noticeboard must be “code-compliant” – so it will now be forbidden to pin notices with union symbols, or encouraging union membership, on a union noticeboard.

In the medium term, this erosion of union power can go much further. With agreements writing the union out of any role in overseeing their implementation, at some point individual bosses can lean on their workers to elect management-friendly “employee representatives” to push the union out almost entirely.

The construction unions are already under serious pressure, even where they are strongest – Victoria. If the code comes fully into effect, large sections of the construction industry will be tied up in regressive, anti-union agreements lasting years into the future. It will take a tough battle to win back that lost ground.

Preparation critical for a real fight

The construction unions’ strategy in dealing with the code from here is far from clear. But history tells us that preparing for a serious industrial fight is no small thing. When the militant Builders Labourers’ Federation was smashed by Labor governments in the late 1980s, hundreds of workers were sacked and many militants blacklisted. Some, including several current leaders of the CFMEU, were jailed. There was an extraordinary level of hardship. But hundreds of militants, backed by thousands of rank and file workers, were prepared to do what was needed, maintaining a fighting union and causing colossal industrial damage to the employers. As a result, many of the conditions won by the BLF are still enjoyed by many construction workers today.

The battle to win the 36-hour week in the Victorian construction industry, in 1999-2000, was a much more conventional industrial battle. But it still required a lot of preparation – raising expectations, talking about the issues at meetings large and small, and preparing union members for the sacrifices ahead. The whole industry slowed to a crawl as bans and strikes bit. Many workers endured unemployment despite a national construction boom, while hundreds were locked out for periods. The unions’ build-up and groundwork were crucial to workers holding the line, making serious sacrifices to win an important long term gain.

The lessons couldn’t be clearer: the time to organise for a serious fight is now.