Cole report - ACT

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Cole report - ACT

(e) Union officials engaging in a campaign to have a contractor sign a union-endorsed EBA, such campaign including:

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In the building and construction industry in the ACT there is:
(a) disregard of and breach of the enterprise bargaining provisions of the Workplace Relations Act 1996 (C’wth);
 
(b) disregard of, or breach of, the freedom of association provisions of the Workplace Relations Act 1996 (C’wth);
 
(c) disregard of the provisions of the Workplace Relations Act 1996 (C’wth) regarding rights of entry and inspection of premises;
 
(d) the existence of ‘closed shop’ sites;
 
(e) requirement for head contractors and subcontractors to have union-endorsed Enterprise Bargaining Agreements (EBAs) before being permitted to commence work on major projects, especially in the central business district;
 
(f) requirement for employees of subcontractors to become members of unions in association with their employer obtaining a union-endorsed EBA;
 
(g) disregard for the terms of EBAs once entered into;
 
(h) application of and surrender to inappropriate industrial pressure;
 
(i) use of occupational health and safety as an industrial tool;
 
(j) unlawful strikes and threats of unlawful strikes;
 
(k) threatening and intimidatory conduct;
 
(l) misrepresentation of the National Code of Practice of the construction industry by assertions that it requires contractors and subcontractors to have EBAs;
 
(m) disregard for contractual obligations;
 
(n) reluctance by contractors to invoke legal or statutory remedies based on a fear of unions’ response;
 
(o) a culture of disregard for the law, and the rule of law, especially by the Construction, Forestry, Mining and Energy Union (CFMEU).
In addition, there was evidence of many other categories of conduct that are in my view inappropriate. Some of the conduct in those categories is unlawful in some circumstances but not in others because of deficiencies in the relevant law. These deficiencies are addressed by recommendations. Other conduct in these categories is not at present unlawful, although I have recommended that some of it be made unlawful, and that the remainder be discouraged in other ways.
 
Categories of conduct which were identified by the Commission in the building and construction industry in the ACT, and which I regard as inappropriate, include:
(a) Union officials exerting pressure upon contractors to have subcontractors removed from sites because an individual was a subcontractor and not an employee;
 
(b) Harassment by union officials of a contractor because the contractor would not enter into a union-endorsed EBA;
 
(c) Union officials raising false safety issues for industrial purposes;
 
(d) Union officials making implicit threats of future industrial action against contractors in order to achieve a union’s industrial goals; and
 
(e) Union officials engaging in a campaign to have a contractor sign a union-endorsed EBA, such campaign including:
  • repetitive wage book inspections;
  • the raising of safety allegations;
  • the threat to report a company to taxation, insurance, workers’ compensation and other authorities;
  • the threat to prevent the company from obtaining work in New South Wales;
  • stoppage of work; and
  • the threat to a head contractor engaging the contractor that it would be responsible for moneys allegedly not paid by the contractor.
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