Cracking Abbott’s Construction Code

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The Senate will soon vote on a raft of amendments to the Fair Work Act. These amendments include the Building and Construction (Fair and Lawful Building Sites) Code.

By Simon Millar, Socialist Party

If passed, the Code will be retrospective. This means it will be back dated to April 24th 2014. This is so that the Code will apply to all new Enterprise Bargaining Agreements (EBAs) due to be negotiated by construction unions.

Any employer who does not have a Code compliant EBA will not be able to tender or supply labour on government jobs. Employers are already drawing up code compliant EBA’s which will apply to both government and non- government work. If this Code is successfully implemented it will undermine the wages and conditions of over 1 million construction workers.

What will the Code do?

The Code will make all EBA clauses that restrict the use of contractors non compliant. The current union negotiated EBA clauses that require any contractor brought onsite to be paid the same wages and conditions will no longer apply. It would also be in breach of the Code for the unions to request pay slips from contractors to check wages and ensure this is happening.

In practice a contractor can get an EBA voted up with only a handful of loyal in house employees. This EBA is then binding on all future employees and under the future rules of the Code it would be marched onto any building site.

How bad can this EBA be?

An EBA only has to pass the Better Off Overall Test (BOOT) introduced by the Australian Labor Party (ALP) in 2009. This test applied by the Fair Work Commission compares the proposed EBA, not with the previous EBA, but with the Award. Using electricians as an example, an employer could set wages as low as $25 an hour and still pass the BOOT with flying colours as the highest hourly wages provided for by the 2010 Electrical Award is $23.49.

The ‘flexibility clause’, also introduced by the ALP, must be included in every EBA. This clause gives the employer the right to approach individuals and get them to sign an agreement that varies anything from penalty rates to working hours. This clause can effectively achieve what John Howard wanted to achieve with individual contracts. Combined with Code it becomes an extremely useful tool to divide workforces and drive down wages.

The Code also makes it non compliant to have EBA clauses that proscribe lump sum payments. Lump sum payments effectively turn a worker into a salaried employee. The pressure on individual workers who are approached by their employer to accept loses in wages and conditions or face the dole queue will be enormous. The code also does away with current EBA restrictions on the use of part time and casual labour.

Non-compliant clauses include a whole raft of provisions in current EBAs that cover, overtime, RDOs and shift arrangements. Gone will be lock down weekends, the ability to say no to working a RDO, the ability to say no to a shift change and the ability the limit the amount of overtime, such as the Victorian ETU’s 10 hour cap. Under the Code employers will have the right to make people work when they want for as long as they want – only restricted by the paltry provisions in the Award.

The Code removes any EBA clauses that stipulate quotas for mature age workers, women or apprentice ratios. All are deemed unacceptable under the catch all phrase ‘this restricts the employer’s ability to manage its business’.

The Code also seeks to restrict the right of union access to members. In fact the Code cannot even bring itself to mention unions by name! Instead it uses the term ‘building association’. Union representatives can no longer have any role in onsite inductions or hold onsite meetings which encourage workers to join the union. A delegate can no longer carry out compliance checks to ensure all members are being correctly paid their wages and entitlements. Material such as union posters, leaflets, RDO calendars, stickers and union flags that encourage workers to join a union are also in breach of the Code.

On top of all this Tony Abbott has created a revamped building industry watchdog headed up by well known anti-union ideologue Nigel Hadgkiss. This watchdog will have more money and powers than ever before to ensure compliance with the Code. There can be no doubt that the long term aim of this watchdog is to remove unions from construction sites altogether.

What can we do?

These are just the broad outlines of what the Code would mean if implemented. For example 76 clauses in the Victorian ETU contracting EBA would be non compliant. Tony Abbott, and the employer organisations who have feed him these policies, have been clear in what they want to achieve. The want big cuts to wages and conditions, the end of penalty rates and union strength reduced to next to nothing. In fact they would prefer unions disappeared altogether.

This impending attack has the ability to destroy 50 years of hard won conditions in a matter of years. The Liberals and their big business backers are banking on our weakness and that new layers of construction workers will not stick together and fight. They hope we will allow ourselves to be walked over by those who have more than we could ever hope to spend.

One thing is for sure – if we want see our wages driven down in a race to the bottom all we have to do is nothing. Obviously this is not an option. We will have to fight. In fact if done correctly the trade union movement could use this battle to get back on the front foot. Now is the time to discuss strategies and tactics and to prepare to do whatever it takes to defend our livelihoods and future.

As a first step the construction unions need to inform their members about the dangers of the Code. A mass mail out to all members with information should be accompanied by the calling of mass meetings to begin the discussions within the ranks.

At the centre of the debate needs to be a plan for a nation industrial campaign. A 24 hour nation wide stop work in the construction sector should be the first step. We need to demand that this Code is taken off the table. At the same time workplace audits, overtime bans, mass rallies and go slows should be introduced to put the employers and the government under pressure to retreat. It is time to hit the construction bosses in the only place they care about – their bank accounts.

The stakes are far too high to sit back and do nothing. We need to start the debate about how to crack Abbott’s Code now. Dare to struggle, dare to win. If you don’t fight you lose.