Cole report - WA

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Cole report - WA

The Cole Royal Commission into the building and construction industry was particularly scathing in its assessment of the industry in Western Australia. 

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The Cole Royal Commission into the building and construction industry was particularly scathing in its assessment of the industry in Western Australia. 
 
Extracts from the Royal Commission’s summary (released on 26 March, 2003) follow.
 
Disregard for the law
 
In Western Australia there is:
  • disregard of, or breach of, the enterprise bargaining provisions of the Workplace Relations Act 1996;
  • disregard of, or breach of, the freedom of association provisions of the Workplace Relations Act 1996;
  • departure from proper standards of OHS;
  • requirement by head contractors for sub-contractors to have union-endorsed enterprise bargaining agreements (EBAs) before being permitted to commence work;
  • requirement by unions for sub-contractors to have union-endorsed EBAs before being permitted to commence work;
  • requirement for employees of sub-contractors to become members of unions, sometimes in association with their employer obtaining a union-endorsed EBA;
  • disregard of the terms of EBAs once entered into;
  • application of, and surrender to, inappropriate industrial pressure;
  • use of OHS as an industrial tool;
  • making of, and receipt of, inappropriate payments;
  • unlawful strikes, and threats of unlawful strikes;
  • threatening and intimidatory conduct;
  • underpayment of employees’ entitlements;
  • disregard of contractual obligations;
  • disregard of codes of practice in the building and construction industry;
  • disregard of the rule of law;
  • disregard of, or breach of strike pay provisions in the Workplace Relations Act 1996;
  • disregard of, or breach of, right of entry provisions in the Workplace Relations Act 1996;
  • disregard of AIRC or Court orders;
  • disregard by senior union officials of unlawful or inappropriate acts by inferior union officials; and
  • 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 the Commissioner has 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 WA, and which is regarded as inappropriate, include:
  • the payment of money by contractors and sub-contractors to a union in an endeavour to buy industrial peace or to be able to undertake contracted work, under explicit or implicit threat of industrial action, including payments for casual tickets, specialised training, employees’ union membership fees and strike pay;
  • the disguising of payments made in an endeavour to buy industrial peace, and the records in which such payments are recorded;
  • the payment under the threat of industrial action of a lump sum by a sub-contractor to a union, on account of alleged underpayments of workers’ entitlements, without any proper investigation of whether any such moneys were due;
  • the use of industrial power by a union to raise money for its own purposes;
  • the inadequacy of banking and accounting procedures within a union;
  • a practice within the industry that the response to the unlawful or inappropriate exercise of power by a union is the payment of money rather than resort to the law;
  • the application by a union and its officers and organisers or site delegates of industrial pressure to achieve industrial objectives, including workers on sites being members of the union or contractors having or signing an EBA with the union or paying EBA rates, by tactics and methods including:
    • the application and the threat of the application of industrial pressure at unrelated sites and on unrelated third parties;
    • threats to contractors and workers that they would be prevented from working in the future at other sites;
    • the disregard and abuse of right of entry conferred by the Workplace Relations Act 1996, including multiple exercise of the right and its use for extraneous purposes;
    • the raising and use of false safety issues;
    • union ‘show card’ days, at which pressure is put upon workers to join the union, or to pay their union dues if they are already members;
    • the compulsion upon workers, not being union members, to attend meetings called by union officials;
    • requiring fit out contractors at a shopping centre redevelopment to employ a union-nominated and unnecessary ‘safety labourer’;
    • the calling of unauthorised meetings and the deliberate delaying of work;
  • head contractors bowing to, accepting and supporting, demands made by a union and its officers and organisers or site delegates, of sub-contractors, including demands that persons working on site join the union or sub-contractors have or sign an EBA with the union or pay EBA rates, by means including:
    • the application of commercial pressure, including threats of reduced work or no work in the future and the threat of back charging the cost of any stoppage;
    • engaging union-nominated site delegates and then permitting the site delegate to have an inappropriate level of control on the site, including of who worked on site;
    • the assertion of a right by union officials and organisers to dictate to contractors and non-union workers when they can work on sites;
  • the disregard by a union and its officials and organisers of the views and interests of employees, including the rights of persons to work and to work without interruption;
  • disregard by a union of the wishes of workers not to have their employer enter into an EBA with a union;
  • the lack of flexibility of a union in relation to pattern EBAs;
  • the assumption and purported exercise by a union and its officials and organisers or site delegates of the right to:
    • require the cessation of work due to weather, where dry undercover work was available to be undertaken;
    • require the engagement of unnecessary labour, including as a condition of the union’s approval to perform work on a Sunday;
    • determine who can work on a project, including particular sub-contractors or workers;
    • determine who will be employed on a project, including who will be employed as the site delegate and to operate cranes;
    • to determine when work can occur;
  • a major builder permitting signs, erected without permission by the union which announced a position said to be contrary to the practices of the company, and contrary to the objects and provisions of the Workplace Relations Act 1996, to remain;
  • a head contractor co-operating with a union so as to make ineffective a building and construction industry taskforce in immediately dealing with a dispute, in circumstances where the taskforce did not otherwise have an independent right to enter the site and conduct investigations relating to any breach of the law;
  • a disregard by a union and its officials and organisers of contractual arrangements, including arrangements of head contractors and sub-contractors, and agreements freely made between employer and employees;
  • the ignoring of legislated dispute resolution processes and agreed dispute resolution procedures;
  • the giving of assurances by union officials pre-Greenfields Agreement, and the breaching of those assurances during construction;
  • the making of secret cash payments to skilled workers by a subcontractor by arrangement with a head contractor to hide the additional payments;
  • employers failing to ensure that immigrant labour working on their payroll is not working illegally;
  • employers failing to ensure that legal immigrant labour is adequately trained and familiar with OHS issues and paid according to applicable site agreements;
  • an unwillingness on the part of employers to take civil action to protect their property or rights, or recover loss suffered by unlawful acts done by a union and its officials and organisers;
  • the lack of adherence by a union and its officials and organisers or site delegates to the rule of law in circumstances where the rule of law conflicts with the union’s interests; and
  • the lack of adherence by head contractors to the rule of law in circumstances where the rule of law conflicts with the head contractor’s interests.

For more information go to the final reports on the Commission website.

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