Cole report - Queensland

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Cole report - Queensland

Cole report - Queensland

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Disregard for the law
 
In Queensland in the building and construction industry, there was evidence of the following:
(a) disregard of and breach of the enterprise bargaining provisions of the Industrial Relations Act 1999 (Qld);
 
(b) disregard of and breach of the freedom of association provisions of the Industrial Relations Act 1999 (Qld) and the Workplace Relations Act 1996 (C’wth);
 
(c) departure from proper standards of occupational health and safety;
 
(d) a requirement by head contractors for subcontractors to have union-endorsed enterprise bargaining agreements (EBAs), or at least to pay the rates prescribed in such agreements, before being permitted to commence work on major projects, especially on sites to which the Queensland Construction Sector Statement of Intent (the Statement of Intent) applies;
 
(e) disregard of the terms of enterprise bargaining agreements once entered into;
 
(f) application of and surrender to industrial pressure, often involving actual or threatened unlawful action;
 
(g) use of occupational health and safety as an industrial tool;
 
(h) unlawful strikes and threats of unlawful strikes;
 
(i) threatening and intimidatory conduct;
 
(j) underpayment of employees’ entitlements;
 
(k) disregard of contractual obligations;
 
(l) imposition of restrictive practices flowing from pattern bargaining;
 
(m) ineffectiveness of the Queensland Code of Practice for the Building and Construction Industry (the Queensland Construction Code) in achieving its objects;
 
(n) a culture of disregard for the law, and the rule of law;
 
(o) disregard of right of entry provisions in the Workplace Relations Act 1996 (C’wth) and the Industrial Relations Act 1999 (Qld);
 
(p) disregard of Queensland Industrial Relations Commission orders; 181182 Final Report of the Royal Commission into the Building and Construction Industry;
 
(q) disregard by senior union officials of unlawful or inappropriate acts by inferior union officials; and
 
(r) reluctance of employers to use legal remedies available.
Inappropriate conduct
 
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 be made unlawful, and that others be discouraged in other ways.
 
Categories of conduct which were identified by the Commission in the building and construction industry in Queensland, and which I regard as inappropriate, include:
(a) unions making demands or imposing requirements, which were accepted or in some cases given effect by head contractors, that all subcontractors have an EBA with a union before they are permitted to work on a site – that is, effectively, ‘No EBA, no Start’;
 
(b) unions using EBAs to promote particular companies with union links and to damage companies without such links, by refusing to enter into EBAs with companies other than the favoured companies;
 
(c) head contractors and unions making agreements (including, but not limited to, the Statement of Intent) which overrule or purport to overrule agreements made between subcontractors and their employees;
 
(d) head contractors requiring subcontractors to pay contributions to the Building Unions Superannuation Scheme (Queensland) (BUSS Q) and the Building Employees Redundancy Trust (BERT), irrespective of any agreements made between subcontractors and their employees;
 
(e) unions demanding that if all subcontractors cannot be required to have an EBA with a union, EBA rates of pay are applied by all subcontractors on a site irrespective of any agreement which may exist between a subcontractor and its employees;
 
(f) unions taking industrial action against a head contractor in relation to the pay and conditions of employees of subcontractors, with the intention of forcing the head contractor to force the subcontractors to change the pay and conditions of the subcontractors’ employees;
 
(g) unions making demands or imposing requirements, which were accepted or in some cases imposed by head contractors, that on so called ‘union sites’ all employees of subcontractors must be union members before the subcontractor will be permitted to work on a site – i.e. ‘No ticket, no start’;
 
(h) unions threatening industrial or other action if subcontractors did not ensure that their employees joined a union, even if all of the employees had decided, to the knowledge of the union, that they did not wish to join;
 
(i) unions demanding that employers pay union membership fees for their employees;
 
(j) head contractors paying union membership fees for subcontractors’ employees to avert the risk of industrial action;
 
(k) unions asserting the right not to work with non-union labour;
 
(l) unions demanding that they be paid money equivalent to the membership fees of certain persons, even though they did not want those persons to join the union;
 
(m) a union imposing ‘fines’, by way of enforced donations to charity, as a result of employers having engaged in conduct of which the union disapproved;
 
(n) unions demanding that all workers on a site be direct employees rather than subcontractors;
 
(o) unions handling money received in settlement of wage claims in a way different from the way in which the union represented that the money would be handled;
 
(p) head contractors and unions making agreements regarding the appointment of job delegates or safety officers, without regard to the wishes of the workers on site;
 
(q) unions disregarding the wishes of their members on a site in relation to, amongst other things, the choice of a job delegate;
 
(r) head contractors delegating responsibility for the conduct of site inductions to union officials, which are then used in part to ensure that all workers on site are union members;
 
(s) A union taking action to institute a bargaining period with an employer where the employees:
(i) were not members of the union;
(ii) were not consulted by the union;
(iii) did not want to join the union; and
(iv) had not asked the union either to act on their behalf or take steps to commence a bargaining period;
(t) Unions requiring subcontractors or head contractors to hire particular job delegates or safety officers, with the result that the subcontractors or head contractors were obliged to employ persons they did not wish to employ;
 
(u) Unions using industrial action or threats of industrial action as a tool to recover employee entitlements said to be outstanding in preference to proceedings in industrial tribunals;
 
(v) Unions using industrial pressure to require head contractors to make payments in respect of subcontractor’s employees, in circumstances where head contractor has no responsibility to make these payments;
 
(w) Unions taking unprotected industrial action, with consequential lost time and cost, without head contractors or subcontractors taking any action to recover lost costs;
 
(x) Unions demanding that head contractors withhold payments from a subcontractor in pursuit of the union’s industrial objectives, and head contractors acceding to such demands;
 
(y) Unions engaging in demarcation disputes;
 
(z) Unions disregarding the orders or recommendations of industrial tribunals;
(aa) Unions acting with the apparent belief that their right of entry under the Workplace Relations Act 1996 (C’wth) and the Industrial Relations Act 1999 (Qld) was effectively unlimited;
 
(bb) Unions insisting on the payment of a travelling allowance to workers who did not travel in their work, or expend money travelling to work;
 
(cc) Unions making opportunistic use of safety claims that were unfounded and known to be unfounded in order to advance industrial claims unrelated to safety;
 
(dd) Unions refusing to accept the results of repeated independent and expert safety inspections of a site;
 
(ee) Unions taking industrial action on government sites in order to put pressure on a government to adopt a policy that all contractors must have enterprise bargaining agreements with the unions if they are to receive government work;
 
(ff) Unions taking industrial action on government sites in order to put pressure on a government to assist in resolving an industrial dispute on an unrelated government project;
 
(gg) Government departments divulging confidential information in relation to a head contractor to unions;
 
(hh) Government putting pressure upon head contractors to sign a Statement of Intent;
 
(ii) Government departments intervening in an industrial dispute in a way that lent support to activity by unions that was unlawful and that must have been known to be unlawful;
 
(jj) Government departments using a prequalification mechanism to put pressure on a head contractor to sign an industry agreement with unions;
 
(kk) Government departments restricting the tendering opportunities of a head contractor as a result of industrial unrest caused by the unions’ insistence that a head contractor sign an industrial agreement;
 
(ll) A head contractor and a subcontractor making an agreement to disguise from a client payments to the subcontractor;
 
(mm) Head contractors paying money to unions to entice them to adhere to dispute resolution procedures; and
 
(nn) Head contractors ceding to unions control over the erection of cranes. 
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