ABCC – to be or not to be?

Imagine if someone considered it perfectly acceptable to call you a “slut” at your workplace, or you had a burly visitor to your work area threaten to punch you in the face, as he stood menacingly a few inches from you, spitting bile at you. Why is stamping out such clearly inappropriate practices at work such a contentious issue in our workplaces in 2016?

After nearly three years as the Building Industry Taskforce, the Australian Building and Construction Commission (ABCC) was originally setup in 2005 to be an independent, statutory authority. Its purpose was to monitor and enhance workplace relations in the Australian building and construction industry. The methods for achieving this was via education, investigating building workplace complaints, and enforcing compliance with various Australian building and construction legislation. The undisputed benefits were cheaper construction costs, a reduction in days lost due to industrial disputation, more civil and professional workplaces and less corruption, thuggery and intimidation of people when they just wanted to come to work and get a job done.  The legal action taken by the ABCC was starting to affect the unions bottom line, as penalties imposed for their unlawful involvement in on-site matters were getting up toward $1 million. This was particularly demonstrated by the outcome of the ‘Westgate Dispute’ with construction giant John Holland.

On 31 May 2012, the ABCC was abolished by the then Federal Labor Government. The majority of its responsibilities were carried over to the newly formed agency, Fair Work Building and Construction (FWBC) on 1 June 2012.  The FWBC retains a mandate to ensure building work is carried out fairly, efficiently and productively but its effectiveness with its neutered powers has been questioned.  It is no coincidence that the most notorious and public union protest in the last decade against building company Grocon by an emboldened CFMEU, just happened to take place in September 2012, mere months after the ABCC was disbanded. It is also interesting to note the CFMEU was court-ordered to pay Grocon in excess of $3.5 million for their involvement in these illegal blockades.

Along with the above-mentioned methods of monitoring and enhancing workplace relations, the ABCC also had compulsory examination powers, or compliance powers.  These particular investigatory powers were not unique to the ABCC, as other agencies with similar powers include the ATO, the ACCC, ASIC and the Australian Crime Commission, who continue to exercise such powers today without little comment and concern from unions, politicians or the community. This element of the ABCC’s powers was always under constant and continual scrutiny by elements of the industry, mostly the unions, their members and supporters.  However, a flipside to this discussion is the numerous requests I fielded from building industry participants to be compulsorily questioned by the ABCC, so as to demonstrate the compulsion to have to attend a compliance examination.  This provided the individual with the security of being able to say, “they forced me” or “I had no choice but to tell the truth” without fear of union reprisals to themselves, their family or their business.

These powers are a necessary element of the regulator’s toolkit in order to clean up the industry and extract information from industry participants that were otherwise reluctant to come forward and speak out about potential wrong doings (given the threats, intimidation and victimisation inflicted against those who volunteered information).  A recent example of this is the attention Boral’s CEO Mike Kane is attracting – even in the courts – for daring to speak out about alleged blackmail against two of the most senior CFMEU Victoria Officials John Setka and Shaun Reardon. Another is building whistleblower Andrew Zaf being threatened “You’re dead” and stabbed outside his home in March 2014.

I spent over a decade as an Inspector for the ABCC on building sites and, later, as one of the ABCC’s Assistant Directors.  The conduct I witnessed on building sites during this time was absolutely deplorable, and any right-minded person would agree is unacceptable.  Some examples of this include:

union officials spitting at and verbally abusing and making death threats to site managers;
Building materials being delivered to the residence of union officials, and the delivery of slabs of beer to union shop stewards as payment for ‘industrial peace’;
Some behaviour of union members worth noting, including the deliberate sabotage of site amenities, which involved full rolls of toilet paper being deposited into the toilet bowl causing the toilet to back up, which led to the site being shut down so the workers could get an early long weekend.

Further, and worryingly, I was locked in a site shed while 50 or so union members surrounded the shed and shook it until it nearly tipped over and was also the subject of personal threats with my home address being placed on a union ‘wanted’ poster and handed out on construction sites.

Legislation is currently before the Federal Senate to resurrect the ABCC to be a strong cop on the beat in the building and construction industry once again. The reason for the legislation is a direct response to the recommendations of the Trade Union Royal Commission (TURC) and the report handed down to the Governor-General in December 2015.  The TURC uncovered countless coercive actions by some trade unions including industrial bullying on building and construction projects throughout Australia. Some tactics have included delays and disruptions on building sites, which blew out costs considerably for the building companies involved with the project.

The re-establishment of the ABCC will play a pivotal role in ensuring laws are strong enough to deter people and business owners from breaking them. It will also prosecute wrongdoers when they act unlawfully.  All parties, not just unions, will need to be diligent in their understanding of their legal obligations concerning these resurrected laws and play by the rules. Importantly, people will again be able to come to work without fear of being threatened, bullied, intimidated and victimised. Surely that’s a good thing for everyone in 2016?

Should the ABCC be returned? Do you think it will have any effect on the culture and current realities on building sites in Victoria?  Let me know your thoughts.

Mark Ritchie

Mark Ritchie

Mark is passionate about helping Australian businesses efficiently resolve their industrial relations issues. Mark has demonstrated proficiency advising managers, executives and boards of small to medium-sized enterprises, as well as some of Australia’s best-known companies, on both litigious and non-litigious matters.

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