The Liberal government has passed three key pieces of anti-union legislation – three tools designed to destroy the construction unions. Unless they are fought, deep cuts to the wages and conditions of construction workers will follow.
The tools could be loosely described as the brain, the cage and the sword. The ABCC (Australian Building and Construction Commission) is the ‘brain’ which will decide and direct the anti-union strategy. The Construction Code is the ‘cage’ designed to trap the unions and strip the industry of union-negotiated Enterprise Bargaining Agreements (EBA). While the Registered Organisation Commission (ROC) is the ‘sword’ designed to strike down any union, or union representative, that refuses to march their members into the cage. All of these newly forged tools will work in concert under the Fair Work Act.
The general approach of the Liberals was outlined by Peter Costello, the former Howard government Treasurer. He gave a keynote speech to the HR Nicholls Society in February called ‘The Importance of Ideas’. He pointed out that unionisation had fallen from 46% in 1986 to under 15% today. He gloated that “Unionism is a feature of the 20th Century. It will not be a feature of the 21st Century.”
He used his speech to focus on the remaining tasks required to realise the boss’s dream of a completely non-union Australia. He suggested that there was a need to target industries that were plagued by so-called “wage fixing”, because of the nature of the work and the market these industries operate in. He focused on the construction industry which hasn’t been brought to heel by the forces of globalisation because “You can’t import a finished commercial high-rise building if a domestically produced one proves too expensive.”
While employer groups like the HR Nicholls Society are discussing the ‘importance of ideas’, very little debate is taking place within the trade union movement. If we are to have any chance of resisting the major threats that loom we need to open up a serious discussion about our own strategy.
Right now, we are on the back foot. Most construction workers are familiar with the ABCC but know very little about the Code or the ROC. The first incarnation of the Code was developed by the Victorian state Liberal government back in 2012. While imperfect from the bosses point of view, employer bodies like the Master Builders Association recognised it as something to build upon.
With the election of the Abbott federal government in 2014 a nationwide version of the Code was developed and put to the Senate. In 2015, the Code, alongside legislation to re-establish the ABCC, failed to pass the Senate. This led the Liberals (then under Turnbull) to call a double-dissolution on the issue in July 2016. While Turnbull narrowly won the election, he did not win the Senate majority he was hoping for. Nevertheless, the new Senate, which includes Derryn Hinch and Pauline Hanson, passed the two bills.
Now in force, the Code will enable the ABCC to deem clauses in current EBAs “non-compliant”. It explicitly forbids any security of employment clauses and it is a breach of the Code to display any posters, leaflets, stickers or clothing on worksites that hint at unionism. But by far the most important aspect of the Code is that it makes the existing ‘Contractors Clause’ illegal.
This measure is aimed at undermining the union’s ability to organise the myriad of contractors that work on major construction sites. It is an attempt to strike at the heart of so-called “wage fixing” arrangements between the CFMEU and the major building firms. Put simply it will make it extremely difficult for the union to police wages and conditions. This will open the door for non-union companies to operate with impunity and it will lead to an explosion of ‘sham contracting’.
Already some sections of the commercial construction industry are operating outside of union influence. This leads to resentment among union members as they pay their union dues but often do not receive union wages and conditions. If the Code is allowed to proceed, the risk is that union EBAs will be reduced to covering a rump of workers. Flowing from this there could be an exodus of members which in turn will lead to the undermining of wages and conditions.
The government has imposed a deadline of September 1, demanding that all agreements are “Code compliant” before then. Construction firms without “Code compliant” agreements will be excluded from bidding on government projects. For many major companies this would be a significant penalty given the government announced more than $70 billion worth of infrastructure projects in the recent budget.
While “Code compliant” agreements are ultimately designed to undermine union organisation, they would also immediately accelerate the stripping back of wages and conditions. In places like Western Australia agreements that comply with the state-based Code there already pay significantly less than those on the east coast. The aim of the national Code is to extend this reduction to wages and conditions.
The CFMEU has stated that they want to protect their current agreements and that they will not be complying with the new regime. The union has passed a motion stating that they will not sign any new “Code compliant” agreements, but it seems that this is not really being taken seriously. It seems that there are plans afoot to follow other unions like the AWU, ETU, CEPU and AMWU, and march their members into the cage.
The Code poses an imminent threat to all construction workers but rather than organise on-the-job action, combined with industry-wide strikes, we are merely being told that we will need to “bargain like we have never bargained before”. Making matters worse we are told that the overarching strategy is to get the Labor Party into power at the next election. This is almost worse than having no strategy at all.
Labor to the rescue?
We only need to look back to 2007 to see how the Labor Party would treat us if they were in power. At that time, the union movement was campaigning against the anti-union ‘Work Choices’ laws. As the election neared, the industrial side of the campaign was transformed into an election campaign for Kevin Rudd.
Rudd was thrown into power and Labor proceeded to introduce the Fair Work Act. This Act kept all the key parts of ‘Work Choices’ intact and parts of the legislation (like the Better Off Overall Test) were worse. The only key difference was that the Fair Work Act maintained a role for the union bureaucracy.
The only way that the Labor Party would be forced to remove the ABCC, the Code and the ROC, would be if they, and the construction bosses, were under enormous pressure due to widespread industrial action. Ironically, this seems to be precisely what the union leaders are trying to avoid.
In addition to the ABCC, and the Code, the government also has the tool of the ROC – the sword. This tool is designed to tackle those unions that may decide to defy the code or challenge the Fair Work Act. The ROC will be responsible for the fining of unions as well as other policing powers. Under the new regime fines against unions and individual unionists have been tripled. In fact, unions now face fines greater than can be levelled against corporations – over a million dollars! Individual unionists can also be fined up to $204,000 with minor infractions starting at $17,000.
The ROC has the power to determine who is a “fit and proper” person to represent workers, with any union representative who tries to defy these laws liable to be removed from their position. This body also oversees union elections, amalgamations and votes for protected action.
While these particular laws are new, the pushing of anti-union legislation has been done many times before. At the same time, workers in the past have fought back and resisted attempts to smash their unions and undermine their wages and conditions. It has been organised mass defiance that has rendered anti-union laws unenforceable in the past. They cannot build buildings without us, they cannot jail us all. This is our power.
It would be correct to refuse to comply with the Code but unfortunately none of the construction unions are making any preparations for a serious struggle. Most members have little to no idea about what the Code is. It’s hardly even mentioned on the union’s website.
One way or another, things are going to come to a head after September 1. With this being the case, organisers and shop stewards should be out preparing the members for what is to come. Mass meetings should be taking place, and both the union and the members should be preparing for industrial action.
While this struggle will be difficult to win, it is possible. To have any chance however, we need to start turning things around immediately. At the moment, the union leaders do not have a discernable strategy to win. With that being the case we need a concerted push from below to provoke a debate and to change the direction of the union movement. There is still a layer of rank and file unionists, shop stewards, and organisers who understand that these laws pose a serious threat, not only to our wages and conditions but to our existence. This cohort needs to come together and prosecute the case for a more militant approach.
We need a return to rank and file democracy and a real industrial and political strategy that is based on mobilising the latent power that construction workers hold. If harnessed correctly this power is capable of breaking any cage. In the short term, we must alert the rank and file to the Code and put out the idea of the need for on-the-job action and industry-wide strikes to make these laws unenforceable. With so much government work in the pipeline, the construction bosses have never been more vulnerable.
By a construction worker