Solidarity

As Michael Bachelard pointed out in The Age recently, the ABCC was ostensibly set up to deal with organised crime in the building industry — yet “almost two years after the ABCC was set up as a statutory commission, not one alleged organised criminal has been charged.” Instead, it uses its extraordinary powers to persecute workers and union officials who dare to stand up to management.

The most recent ABCC prosecution is trumpeted in a press release (pdf). A CFMEU organiser, Adrian McLoughlin, had his entry permit revoked for 2 months — a lot shorter than the 18 months demanded by the ABCC — for some minor, technical breaches of the legislation. But the decision was more interesting because it slammed some of the dodgy tactics used by the ABCC in its union-busting crusade.

What did the CFMEU do wrong?

The ABCC conveniently points to the summary at paragraph 216 of AIRC Senior Deputy President Watson’s decision. But it’s when we go back to the full findings as to each aspect that the real picture emerges. McLoughlin did not disrupt work, and when he did it was because of legitimate health and safety concerns.

Let’s take each of the findings separately.

Yarra Arts site

SDP Watson penalised McLoughlin for “refusing to produce his permit over the course of four site visits to the Yarra Arts site”. Looking at the four visits, there appears to have been no significant disruption to the site. These were essentially technicalities:

• The first breach was on 21 June 2006, at [114]-[117]: “Mr McLoughlin proceeded on to the site, spoke to Mr Johnson and walked around the site with him for 10 minutes. There was no interruption to work on the site.”

• The second was on 6 July 2006, at [119]-[121]: “There was no interruption to the site, save to the extent that Mr McLoughlin had a brief conversation with Mr Johnson.”

• The third was on 11 July 2006, at [122]-[124]: “Mr McLoughlin proceeded on site and talked briefly to Mr Johnson. There was no interruption to work on the site.”

• The fourth was on 3 August 2006, at [128]-[129]: “Mr McLoughlin was requested to attend the site by Mr Johnson … to assist him with OHS matters … There was no disruption to work, other than a delay in a safety walk occasioned by the conversation [about safety] between Mr McLoughlin and Mr Johnson.”

There were many more site visits that did not involve any breaches. The site managers knew who McLoughlin was, and they knew he had a permit. SDP Watson also noted, at [144], that the employers engaged in “a pattern of behaviour directed to creating barriers, whether properly founded or otherwise, to Mr McLoughlin’s entry on site” (my emphasis).

At the same site, McLoughlin also “fail[ed] to accede to requests to adhere to site OHS requirements (or challenge the reasonableness of the requests in the proper way) on 3 August 2006 and 15 August 2006″. This was due to one of the “barriers” raised to his entry. After many visits, he was suddenly told he needed to undertake a site induction (at [131]), which he disputed with the site manager.

On the first visit, McLoughlin took a safety walk and raised a safety concern (at [132]) but “[t]here was no interruption to work on site” (at [133]). On the second visit, McLoughlin said he wanted to hold a meeting about the site OHS representative at 12pm. He was told lunchtime was at 12:30pm and asked not to use the lunchroom, so “Mr McLoughlin conducted a meeting off-site at lunch-time” (at [137]). McLoughlin was clearly trying to minimise disruption at the site.

St Leonard’s site

McLoughlin was also cited for “refusing to produce his permit … [during] the 10 August 2006 attendance at the St Leonard’s site”. Again, there was no disruption (at [184]-[186]: “Mr McLoughlin attended the site at 6.30 a.m., half an hour before the normal start of work. … Mr McLoughlin then conducted a [safety] meeting between 6.45 and 6.55 a.m., which concluded before the normal start time.”

Interestingly, SDP Watson hints that McLoughlin was set up by the ABCC. He had shown his permit on his first visit, and had visited again several times without being asked to show it again. Then the ABCC got involved (at [184] and [212]):

The Inspectors had advised Mr Chambers on 9 August 2006 about asking Mr McLoughlin for his permit on his next visit. … [O]n 10 August 2006, a request was made for the first time for him to produce his permit. Mr McLoughlin’s refusal to do so, whilst wrong, arose in the context of the sudden insistence by Mr Hall on the occupier’s right to have a permit produced, an insistence which seems to have arisen at the suggestion of the ABCC Inspectors.

So McLoughlin was prosecuted even though the employer and the ABCC knew who he was, they knew he had a valid permit, and he didn’t cause any disruption.

CEA Cecil Street site

McLoughlin was also guilty of “interrupting normal work during the course of his 1 June 2006 attendance at the CEA Cecil Street site”. SDP Watson found at [221] that this was “the more serious abuse”, but that “Mr McLoughlin’s actions were motivated not by an intention to disrupt work but to ascertain from employees further information in relation to OHS issues raised with him by the site OHS representative”.

McLoughlin had been called to the site by the safety rep. He told management why he was there, that he would need to speak to some workers about safety concerns, and that he would report back to them after the meeting (which he did). At [95], this was held to have been “a sensible way to proceed, save for the conduct of the meeting in working time rather than during a break.” The workers concerns about excessive overtime were valid ([91]) but “[i]n hindsight” not so urgent as to require a stoppage. On the other hand, SDP Watson notes at [97]:

It is accepted, however, that at the time, Mr McLoughlin was not in a position to fully understand the nature and urgency of the issues without consulting with the employees. In my view, the decision by Mr McLoughlin to hold the OHS meeting at that time was motivated not by a desire to disrupt the site, but by a desire to fully understand and then rectify OHS concerns brought to his attention in broad terms by Mr Battaglene the preceding day.

No significant disruption

You’ll note that the Cecil St meeting was the only incident that caused disruption to a project, and that was only 26 minutes and was due to legitimate safety concerns. The Victorian Building Industry Disputes Panel had already found that “the meeting was an OHS meeting and not an industrial meeting” and “determined that a deduction of 25 minutes pay should occur”, but “[t]he companies deducted four hours pay nonetheless, apparently on the direction of the ABCC” (at [89]). But despite getting the company eight times the money they were entitled to for the meeting, the ABCC still went after McLoughlin for these minor infractions — and demanded, albeit unsuccessfully, that he lose his permit for 18 months!

AIRC slams ABCC’s tactics

Causing unnecessary industrial antagonism

Interestingly, SDP Watson decided he needed to append a “Concluding Observation” to his decision, at [227]-[229]. He noted that the problem here was caused by tension between McLoughlin and the employers, “with each side asserting its rights as understood by them.” In the past, he said, these tensions had been managed by discussing the issues and agreeing protocols for right of entry, if necessary by using the conciliation processes of the Commission. Now, though, employers seemed more interested in asserting their rights for the sake of it:

Whilst occupiers have statutory rights and are entitled to make requests of permit holders … the making of such requests by occupiers in relation to each and every entry is not necessarily conducive to the orderly, responsible and productive exercise of the right of entry. As an example, the insistence on the production of a permit in respect of each and every entry, where the occupier’s representative is aware of the identity of the permit holder and the fact that they hold a permit, whilst legally available, might serve no practical purpose, other than the assertion of statutory rights and insistence on statutory limitations upon permit holders.

This is a pointed reference to the ABCC’s intervention, especially at St Leonard’s. You will recall that the ABCC interfered and encouraged the employer to take an increasingly antagonistic approach. The Senior Deputy President was clearly unimpressed, and was forced to remind the ABCC that the purpose of the legislation was to “facilitate the responsible and orderly exercise of entry rights”, not to force unions to jump through pointless hoops and then prosecute them for minor infractions.

One-sided investigations

At the other end of the judgment, SDP Watson had some more strong words for the ABCC. At [79], he said:

the manner in which the investigation and interviews appear to have been conducted and recorded by ABCC Inspectors was to cast Mr McLoughlin in the worst possible light, rather than to provide full evidence as to the manner in which Mr McLoughlin exercised his right of entry on to sites.

In other words, the ABCC was out to get McLoughlin and the CFMEU, rather than trying to establish the truth of the matter.

There is another interesting aspect to this that was not stated by SDP Watson. At that site, McLoughlin had “identified a number of OHS problems” that were “genuine safety issues, which could cause a serious accident at any time”, including an unprotected “brittle and fragile” asbestos roof (at [161]-[162]).

When workers began to rectify the problems, the site manager threatened to call the ABCC (at [171]). McLoughlin called WorkSafe, who identified nine more safety breaches (at [174]). Then the company made good its threat and the ABCC turned up that afternoon. It was later that day that the inspectors advised the company to play hardball on rights of entry — that is, where the union had validly exercised its rights and identified a range of safety problems, verified by WorkSafe, the ABCC turned up and took the unsafe employer’s side to keep the union out in future!

Verballing witnesses

When SDP Watson said the ABCC had not provided “full evidence”, he meant they had left out material favourable to McLoughlin and exaggerated the unfavourable. They did this by carefully selecting which evidence would be put in the witness statements. In fact, the Senior Deputy President found that the ABCC had verballed its witnesses:

The evidence of the company witnesses brought by Ms Martino relied upon and adopted statements given by them to ABCC Inspectors at various times. The evidence in relation to these statements suggests, to some extent, that the statements as recorded by ABCC Inspectors reflect the particular terms of questions posed by Inspectors rather than a recording of the factual position as conveyed by the witnesses in their own words in evidence in the current matter. Further, there is evidence that some information provided in interviews, which was favourable or neutral to Mr McLoughlin, was not recorded in statements prepared.

This is not how prosecutions are run in civil society. It the police or the DPP were involved in this type of thing, that would be outrageous, but from the ABCC it is even worse. The ABCC is an organisation that has tremendous coercive powers in dealing with witnesses, so its obligation to treat evidence properly and impartially is even stronger. It can’t be trusted — it puts union-busting ahead of workplace safety — and it has been caught out producing misleading evidence in prosecutions. The ABCC should be abolished.