Construction industry watchdog stays in the news

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Construction industry watchdog stays in the news

A leading IR academic says the replacement body for the ABCC must abandon its partiality if it is to fit in the culture of Fair Work Australia (FWA). Meanwhile, construction unions only have themselves to blame for the existence of the ABCC and its coercive powers because of decades of intimidation and unlawful action, Master Builders Australia believes.

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A leading IR academic says the replacement body for the ABCC must abandon its partiality if it is to fit in the culture of Fair Work Australia (FWA). Meanwhile, construction unions only have themselves to blame for the existence of the ABCC and its coercive powers because of decades of intimidation and unlawful action, Master Builders Australia believes.
 
Partial ABCC won’t ‘fit’ in new IR system, says academic
 
A leading IR academic says the replacement body for the ABCC must abandon its partiality if it is to fit in the culture of Fair Work Australia (FWA).
 
David Peetz, professor of Employment Relations at Griffith University, says there should be no question of the existing ABCC staff transferring ‘holus bolus’ to the new body if it is to be seen as impartial and non-partisan.
 
Writing for the online news and comment site Crikey, Peetz says the culture of the ABCC ‘is not and has never been impartial’.
 
‘It has concerned itself almost exclusively with transgressions by unions, or by employers who have facilitated or acquiesced to transgressions by unions,’ he says.
 
Clash of cultures
 
He says there is the danger of a major clash of cultures between FWA and the ABCC.
 
‘FWA is intended to be an impartial body with bipartisan appointments,’ Peetz says. ‘According to the Act, it must “exercise its powers in a manner that is fair and just” and that “promotes harmonious and cooperative workplace relations”.
 
‘In this way it inherits the bipartisan and balanced culture of the Industrial Relations Commission.
 
‘Yet once a specialist division is established within FWA, it must take on an impartial, non-partisan role that promotes harmonious and cooperative relations.
 
‘It is difficult to see how this can be achieved if that part of FWA is actively punishing employers who engage in harmonious and cooperative relations with unions.’
 
‘Don’t just transfer ABCC staff’
 
Peetz says that if FWA is to attract and retain high quality personnel, including to the building industry division, it will need to be seen as impartial and non-partisan.
 
‘If officers of the ABCC were to be transferred holus bolus to the ABCC, they would bring with them a culture of partisanship unless major changes take place,’ he says.
 
‘This is a potentially critical problem for the effective functioning and credibility of FWA, if it is not resolved in the planning stage.
 
‘FWA could not retain the confidence of the parties and survive as an impartial, bipartisan institution if it contains within it a partisan division whose actions and culture are antagonistic to those of the rest of FWA.
 
‘There should also, then, be no presumption that the current senior leadership of the ABCC would transfer into FWA. The senior positions in the specialist division, including the divisional manager and other senior SES-level staff, should be openly and competitively advertised.’
 
Must use powers equally
 
Peetz says IR Minister Julia Gillard must make it clear that the building industry division will use its powers equally, including the coercive powers that she has signalled will be retained.
 
‘If it is going to fine unions who strike to resolve a dispute about underpayment, it must treat equally harshly the firms who underpay workers’ entitlements in the first place,’ he says.
 
‘If it is going to haul before the courts a union member who refuses to tell them about what happened at a meeting to discuss safety breaches by the employer, it must also haul before the courts the employers who breach the safety laws in the first place.’
 
Highest number of deaths
 
Peetz says this is no trivial matter, as the construction industry has become the one with the highest number of deaths since the ABCC was established.
 
‘The employers would prefer the ABCC to just be rebadged and reincarnated within FWA,’ he says.
 
‘The unions would prefer to see the ABCC and all traces of it abolished.
 
‘But if Minister Gillard is going to make FWA work, she is going to need to make sure the building division genuinely fits within FWA.
 
‘Otherwise, there will be ongoing conflict between the culture of the specialist division and that of the rest of FWA, making for a very fractured organisation as the institutional centrepiece of her new industrial relations laws.’
 
Unions brought the ABCC on themselves, say builders
 
Meanwhile, construction unions only have themselves to blame for the existence of the ABCC and its coercive powers because of decades of intimidation and unlawful action, Master Builders Australia believes.
 
MBA CEO, Wilhelm Harnisch, criticised the ACTU and the building unions for ignoring the facts about the ABCC in tackling unacceptable unlawful industrial action, coercion, and intimidation on building sites.
 
Culture of coercion
 
‘The fact is the ABCC is about stamping out a culture of coercion and intimidation in the commercial building sector; the ACTU and the building unions are out of touch in calling for the abolition of the ABCC powers,’ Harnisch said.
 
‘The inconvenient truth for the unions is that there exists a mountain of evidence for over two decades which justifies the need for a body like the ABCC.
 
‘The mountain of evidence goes back to the late 1980s when the Builders Labourers Federation (BLF) was deregistered, followed by the 1992 Giles Royal Commission, the 2003 Cole Royal Commission, and more recently the 2009 Wilcox Inquiry — and this is on top of numerous court decisions and state government inquiries which have also drawn the same conclusion.
 
Inconvenient truth
 
‘The inconvenient truth for the unions is that there is systemic and entrenched unlawful behaviour by building unions on building sites.’
 
Harnisch said the mountain of evidence supports the argument that the powers of the ABCC should stay, and that construction workers should be subject to the specialised industrial laws.
 
‘The ACTU and the building unions, as a minimum, need to publicly repudiate the current culture of coercion and intimidation as industrial weapons if the building industry is to take them seriously,’ he said.
 
Out of step with community standards
 
‘The various inquiries and Royal Commissions show that building unions do not behave in line with normal community standards, and whether they like it or not they continue to be judged as being clearly out of step.’
 
Harnisch said the work of the ABCC has seen the industry experience an era of unprecedented industrial peace and productivity.
 
‘A recent independent study shows that since the introduction of the ABCC there has been an annual economic welfare gain of $5.5 billion to the community, with a 10% out-performance in construction industry labour productivity.
 
‘The Government’s infrastructure stimulus package and economic recovery strategy will be riding on the industry’s ability to get on with the job and to deliver on time and on budget.’
 
Caucus expected to approve Bill
 
Meanwhile IR Minister Julia Gillard is expected to get her legislation setting up the replacement body for the ABCC in the Fair Work Australia system through a Labor caucus meeting today, despite some opposition from the left.
 
Former ACTU president and now federal Labor MP Jennie George said yesterday that building unionists now have fewer rights than ‘most hardened criminals’.
 
Tasmanian Labor MP Dick Adams also attacked the retention of the coercive powers of the ABCC in the new body, and Victorian senator Jacinta Collins said she was yet to be convinced the government would introduce adequate safeguards to deal with her concerns.
 
However Gillard is expected to easily have the numbers in caucus to push the legislation through. It is expected to be tabled in Parliament this week or next week.
 
Safeguards included
 
The Bill is expected to include safeguards recommended in the Wilcox report, including that any notice to compulsorily interrogate a person would be issued only by a presidential member of the Administrative Appeals Tribunal, who would have to be satisfied that the worker had information or documents relevant to an investigation; that the information was important to the investigation's progress; and if there was no other way of obtaining the information.
 
As well, the Commonwealth Ombudsman will monitor the compulsory interrogations and report to parliament annually. The interrogation powers will be subject to a five-year sunset clause, at which time they will be reviewed.
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