The Guardian 26 November, 2008
Don’t let Noel go to jail!
Anna Pha
Mass rallies will be held across Australia on Tuesday December 2 in support of Noel Washington, a union official who faces court in Melbourne on charges that carry a six-month jail sentence. Messages of solidarity are pouring in from around the world from the USA, Europe and across the ocean to as far away as Senegal. Noel is charged with refusing to attend a secret interrogation session with the Australian Building and Construction Commission (ABCC). Noel recently attended a union meeting near a building site during lunch hour. There is nothing illegal in that. He now faces court and a possible six months in jail because he refuses to say what happened at that union meeting.
A resolution calling for the ABCC to be disbanded is being put to workplace meetings of building and construction workers around Australia. The resolution says: "We believe that repressive laws like these have no place in Australian society … If any worker or union official is jailed under these laws we call on our unions to organise a national response."
Repeal Act now
The resolution says that the ALP government "was elected to rid Australian workplaces of unfair industrial laws and they should move to do that without any further delay."
At present the Labor government’s position is to keep the ABCC in place until 2010 with a promise to building industry employers that it will transfer the ABCC’s powers to a special division at the new Fair Work Australia. At best this might involve the removal of some of the ABCC’s most extreme powers. This is not satisfactory. There is no place for such laws under any name. The Act should be repealed immediately.
Under the former Howard government’s misnamed Australian Building and Construction Industry Improvement Act, the ABCC has the power to subpoena for secret interrogation any worker, union delegate or union official in the industry. It can even subpoena passers-by in the street for interrogation. Failure to attend, refusal to answer questions or giving anyone information about the interrogation are subject to jail sentences of up to six months under the Act. (The court is not even given the option to impose a fine!)
The ABCC was set up in 2005 with the aim of ridding the industry of trade union organisation and activity. Under laws that criminalise basic, legitimate trade union activity and union members and officials, the ABCC employed an industrial police force that hounded and intimidated building and construction workers and union representatives.
The ABCC’s powers wipe longstanding, internationally recognised democratic rights, including the right to remain silent, freedom of speech, and the right to representation by your legal representative.
The government claimed that the ABCC’s official brief was to oversee adherence to industrial laws in the industry. But the ABCC has made little pretence at maintaining law and order, as is evident by its persecution and prosecution of unions and unionists, and failure to address the underpayment of workers and criminal behaviour of employers, even when the lives and safety of workers are involved. Based on their personal experiences, workers in the industry view the ABCC inspectors as thugs and industrial spies.
One of the worst cases involved 107 individual workers in Western Australia who were persecuted and prosecuted by the ABCC. Through this case the vicious tactics of the ABCC were unveiled. Workers were phoned, their homes visited and their wives and children intimidated, actions usually only expected from fascist regimes where workers and trade union rights are not guaranteed.
The 107 were penalised for exercising their democratic right to defend their shop steward who had been unlawfully dismissed as was proven some months later by the Industrial Relations Commission which ordered his re-instatement.
These conditions induce extreme fear and psychological damage on workers who believe they have no power or rights whatsoever. In addition there are penal provisions that attack the income of workers. For example, if a 20-minute union meeting is over-extended by a few minutes four hours of workers’ pay is docked.
All of this intimidation and harassment at taxpayers’ expense have not made workplaces more efficient or safer. On the contrary, bosses supported by the ABCC’s task force feel free to cut corners and rip workers off.
The ABCC has not held back in using its draconian powers, powers that are wide open to abuse. The abuse of its powers is extensive.
No ends to abuse of power
To take one recent example: building worker Brian George Shearer was accused by the ABCC of assaulting and threatening to kill two ABCC officers at a Melbourne construction site on December 6, 2006 and the matter was referred to the police. Brian faced two charges of unlawful assault, two of making threats to kill and two of threatening to cause harm to a public official. Last month, following police investigations, the Director of Public Prosecutions decided not to proceed.
Mr Shearer said he endured "two years of living hell". "Having these allegations hanging over my head has really taken a toll on me and my family," he said.
"While I’m glad to be moving on with my life, it’s very concerning to me that other building workers continue to be at risk of being used as a tool in the campaign to protect the Australian Building and Construction Commission."
As long as the ABCC remains, that risk remains for building workers.
"It is a disgrace, an abuse of power and corruption of the political process by the ABCC," Dave Noonan, National Secretary of the construction division of the CFMEU said. "The ABCC dragged Mr Shearer’s name through the mud. They have slandered the union and [ABCC head] Mr Lloyd should apologise and resign….
"They besmirched the name of an innocent man in a desperate attempt to portray construction unions as bullies and thugs," Mr Noonan said.
Mr Shearer’s barrister, Brendan Murphy QC summed it up: "This man has been through 21 moths of hell because he was going about his work as a building worker." This is exactly why the ABCC must be abolished, not transferred, not renamed body or its powers tinkered with around the edges. Lloyd and its officers should be the subject of investigation and the real building industry thugs put out of business.
Employer dishonesty defended by ABCC
Last month Federal Court Judge Jeffrey Spender threw out the case brought by the ABCC in relation to a Gold Coast project and awarded $16,000 in costs to the plumbers union. An official of the union faced a personal fine of $66,000 and the union a $360,000 penalty over allegations they had tried to coerce the lead contractor not to engage the subcontractor called Underground.
Justice Spender said the case pursued by the ABCC should not have been brought to the court. He described the director of Underground as a "foul-mouthed industrial cowboy" whose purported employment of workers as independent contractors was a "sham".
The bogus employment arrangement was an "example of dishonest or fraudulent financial engineering by Underground" to avoid its obligations under the workplace agreement, Justice Spender said. It was also a "dishonest attempt" to evade tax and superannuation obligations.
Don’t hold your breath waiting for the ABCC to bring charges against Underground!
There are numerous other examples of the ABCC’s abuse of power and anti-union agenda. Noel’s persecution and possible jail sentence adds to the list of the Commission’s witch hunts of innocent unionists.
Blank cheque to persecute unions
The ABCC has cost taxpayers close to $1 million in legal fees in pursuit of the Construction, Forestry, Mining and Energy Union and other building and construction unions and their members in the courts. That amount is in addition to the ongoing $33 million plus annual bill footed by taxpayers to carry out its dirty work for employers.
And what did it achieve for all that expense? What illegal or corrupt activities did it uncover? What did it do to halt deaths and serious injuries — an average of one workplace death a week — in the industry? Nothing. Just two weeks ago, there was the death of a Section 457 Visa worker on a non-unionised building site. Where was the ABCC with its industrial spies?
The ABCC’s biggest "successes" were fines against the CFMEU in March last year of $23,250 and the suspension of right of entry permits of a number of union officials for such "crimes" as union recruitment, protection of job safety, seeking rights under site agreements and other legitimate trade union activity.
Its real achievements, in the eyes of its creators and the employers, were the intimidation and persecution of building workers, suppression of trade union rights and the right of building companies to continue with impunity their corrupt, illegal and unsafe work practices.
By continually taking unions and their members to the courts, the ABCC with its bottomless pit of taxpayers’ money is draining unions of members’ funds and diverting a great deal of union time from what the it should be doing on the job — protecting workers from negligent and corrupt employers.
Howard’s building industry laws have been condemned five times by the International Labour Organisation.
Justice Murray Wilcox QC is leading an inquiry which will make recommendations to the federal government in March next year on what will happen to the ABCC under Fair Work Australia. It is widely recognised that the ABCC, apart from its repressive, fascistic nature, is highly discriminatory against the workforce in one industry. There is a danger that its powers will be extended to other industries or across the workforce.
Only one sentence is needed in the report: Repeal the Act immediately, review the activities of the ABCC, compensate workers and trade unions for its abuses, and bring charges against the officers of the ABCC where appropriate.
This will not happen without a massive, broad campaign by unions and the community.
Until such a time as the Act is repealed the Minister, Julia Gillard, should exercise her powers under the Act and give the ABCC Commissioner directions specifying the manner in which he must exercise the powers and functions of the Commission. She has these powers; she could direct the Commissioner to pull off its hounding and surveillance of the union movement, and meanwhile direct its attentions to the pursuit of the criminal and corrupt activities of employers, to make sure workers receive their entitlements and that workplaces are safe and union rights can be exercised.
Make sure you are there, and that this becomes the biggest action of 2008 and a warning to the government that it was elected on a promise of abolishing the anti-union laws of the Howard government, and that the electorate expects nothing less.
For further details of the Noel Washington case and the campaign to get rid of the ABCC visit: rightsonsite.org.au