The survival of the Australian Building and Construction Commission has become a customary element of federal election campaigns. The ABCC was established in 2005, abolished in 2012, became the trigger for the 2016 double-dissolution election and was re-established that year. The ALP plans to abolish it if it wins the May 18 election.
Perhaps many are ambivalent about the role of the ABCC. The proposition that the building and construction industry is riddled with lawlessness and beyond control is tolerated. Perhaps too few appreciate how damaging the abolition of the ABCC would be.
The Coalition believes the industry’s defiance of the law is exceptional and a tough regulator is required. The ALP believes the building unions’ conduct is unexceptional and general workplace relations laws will secure lawful conduct.
In any discussion of the building and construction industry several salient facts apply. Industry participants, particularly the unions, are singular in their disregard for lawful conduct. Commercial interests owning and financing projects take a short-term view and are inclined to ignore the industrial turmoil. Subcontractors have limited capacity to resist coercion and extortion. The Construction Forestry Maritime Mining and Energy Union is dominant and seeks to control the industry’s labour supply. Exposure to penalties and costs to achieve one’s aims is an accepted business strategy. Court decisions are increasingly critical of the union’s repeat offending. The penalties imposed are travelling closer to legislated maximums.
In the absence of the ABCC the worst of unlawful standover tactics would characterise the industry. An examination of cases brought before the courts since 2005 is illuminating. The ABCC has been highly successful in holding unions and others to account. It has won most of its cases. Its 2017-18 annual report records that the courts awarded penalties of almost $6 million that year. The majority, $5.6m, was levied against the CFMEU. Since 2005 penalties against the CFMEU top $17m.
The contraventions penalised in the early ABCC cases continue to feature today. Also, several officials penalised in earlier cases continue to be respondents to contemporary cases. The early cases involved coercion to employ a person, coercion to have a union agreement, coercion not to engage a contractor, right-of-entry breaches, and unlawful industrial action. The same contraventions are found in recent cases. The cases today involve the levying of substantial penalties: $74,000 for right-of-entry breaches on a Flinders Medical project; $668,000 for a campaign of unlawful industrial action on several Queensland projects. The Barangaroo project in Sydney saw record penalties of $1.706m for coercion, unlawful industrial action and failing to comply with an agreement.
The ABCC has had many legal wins. In addition, its site presence and education of industry participants empower many contractors to repudiate union threats and intimidation. Even so, unlawful conduct persists. The ABCC has more than 30 cases before the courts. The battle to move to a law-abiding industry continues and the CFMEU’s aggression has hardly abated.
The ABCC issue is more than a matter played out by political heavies. It affects an industry crucial to our economy. Pervasive industrial lawlessness has substantial productivity and cost impacts.
The CFMEU conduct can be reined in only by a powerful and determined regulator. The union does not listen to reasonable or fair-minded pleadings. The abolition of the ABCC combined with a proposed 66 per cent reduction in maximum penalties will have an obvious result. It will be a green light for more coercion and intimidation of honest subcontractors and their hardworking employees. Unlawful strikes and bans will intensify. The costs of public and private projects will rise. No winners, except for those engaging in thuggish behaviour, will emerge. This is an incomprehensible outcome that has serious and destructive elements and should not be tolerated.
The CFMEU presents a lurking danger for the ALP. It is the major contributor to the ALP and supports many candidates. It seeks and uses power ruthlessly. It must be a genuine concern as to whether the embrace of the CFMEU will ultimately compromise or tarnish the functioning of the ALP. Time will tell.
In recent years CFMEU officials and branches have pledged support to the besieged government of Venezuela and its autocratic President. The Australian government was urged by a senior CFMEU official to recognise the last Venezuelan election and congratulate President Nicolas Maduro. We should be concerned that a building and construction industry let off the leash may embark on a Venezuelan journey of corruption, misery and a callous disregard for the rights of honest individuals. A strong regulator is needed now more than ever.