Cole report - Tasmania

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Cole report - Tasmania

Cole report - Tasmania

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Disregard for the law
 
In Tasmania there are widespread occurrences of the following:
(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) departure from proper standards of occupational health and safety (OH&S);
 
(d) requirement for head contractors or subcontractors to have union-endorsed Enterprise Bargaining Agreements (EBAs) before being permitted to commence work on major projects, especially in the central business district;
 
(e) requirement for employees of subcontractors to become members of unions in association with their employer obtaining a union-endorsed EBA;
 
(f) disregard of the terms of EBAs once entered into;
 
(g) application of and surrender to inappropriate industrial pressure;
 
(h) use of OH&S as an industrial tool;
 
(i) unlawful strikes and threats of unlawful strikes;
 
(j) threatening and intimidatory conduct;
 
(k) underpayment of employees’ entitlements;
 
(l) disregard of contractual obligations; and
 
(m) a culture of disregard for the law, and the rule of law, especially by the Construction, Forestry, Mining and Energy Union (CFMEU).
Categories of 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 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 Tasmania, and which I regard as inappropriate, include:
(a) threats by union officials of industrial disruption to a site and other interstate sites of a head contractor if all subcontractors did not have a union-endorsed EBA;
 
(b) threats by union officials to a subcontractor that if it did not sign a union-endorsed EBA the subcontractor would not be able to do any more commercial work, or the subcontractor’s opportunities to obtain work would be restricted;
 
(c) employers succumbing to pressure from union officials where the employers fear that non-compliance with union requirements will result in industrial action being taken;
 
(d) unions requiring that there be a standard or pattern EBA in a form appropriate for certification under the Workplace Relations Act 1996 (C’wth), even though there was in operation a concurrent memorandum of understanding which amended the terms of such EBA;
 
(e) the initiation of a bargaining period by a union, although uninvited to do so by any of the employees and in circumstances where those employees were already engaged in discussions with their employer about Australian Workplace Agreements (AWAs);
 
(f) head contractors, while falling short of imposing a requirement on a subcontractor to have a union-endorsed EBA to work on a site, giving an intimation of preference for a union-endorsed EBA leaving the subcontractor in no doubt that it was a precondition to work on a particular project;
 
(g) negotiation by unions and a head contractor, in advance of the commencement of work on a site and without any consultation with subcontractors or their employees, of a site agreement which overrode existing agreements;
 
(h) union officials using abusive language and intimidation of an industrial nature against contractors in an effort to further a union’s industrial agenda;
 
(i) union officials using OH&S as an industrial tool, particularly against contractors without union-endorsed EBAs;
 
(j) union officials using OH&S as a cloak to obtain entry to sites to check on rates and conditions of employees;
 
(k) union officials’ unsolicited intrusion into the relationship between an employer and its employees in circumstances where the employees did not wish to, and did not, become members of the union;
 
(l) an agreement between a union and a head contractor that as a condition of tender the head contractor would require the subcontractor to enter a union-endorsed pattern EBA;
 
(m) a head contractor seeking union approval from a union before engaging subcontractors, and only engaging those subcontractors of whom the union approved;
 
(n) contractors paying union subscriptions for employees who were unwilling to join a union in order to enable such employees to work on a site; and
 
(o) union officials insisting on contractors paying superannuation to a specified fund as a precondition to entry on a site.
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