Squaring Off


In 1799, British Prime Minister William Pitt introduced the first of two Combination Acts. They were generally regarded as the most anti-union legislation of that era. Trade unions were effectively outlawed.

Pitt thought he had a good reason for this. He was afraid of unions becoming a source of civil unrest in the wake of the French Revolution.

In 2005, one of the worst pieces of anti-union legislation since the Combinations Acts the Howard Government’s Building and Construction Industry Improvement Act 2005 (BCII Act) passed through our Parliament, a few months before its better known stablemate, the WorkChoices Act.

The BCII Act created the office of the Australian Building and Construction Commissioner.

The role of the BCII Act is crucial in understanding why Dean Mighell’s resignation from the Labor Party was forced last week and why loud complaints are being made by building union officials about Kevin Rudd’s hard line against union militancy.

The real aim of the Act is to restrict as far as possible the activities of the building unions. It outlaws most industrial action and heavily restricts collective bargaining. The Commissioner has a large staff and extreme powers to investigate breaches of law by industry participants.

Even minor breaches are punishable by fines of up to $22,000 for individuals and $110,000 for corporations, including unions.

Perhaps the most extreme provision of the BCII Act however, is that it gives the Commissioner, or a member of his staff, the power to interrogate people on matters relevant to an investigation. Anyone who refuses to answer any relevant question even an incriminating question is committing an offence punishable by six months jail. You can be interrogated even if you are not suspected of an offence, and that interrogation may be for an unlimited period. Even ASIO’s interrogations of non-suspects are limited to 24 hours an interrogation under this Act could theoretically continue for months.

Because the power applies to non-suspects and it is arguable that lengthy interrogations may amount to arbitrary detention by the Executive government, it may be invalid under Australia’s Constitution.

Even apart from that, the provisions restricting industrial action and collective bargaining are contrary to at least three of the international human rights instruments, which Australia has ratified and the Howard Government is supposed to implement into Australian domestic law.

Image thanks to Sean Leahy.

They clearly infringe Article 8 of the International Covenant on Economic, Social, and Cultural Rights, one of the two main United Nations human rights treaties. In addition, the International Labour Organisation (ILO) says that the Act contravenes two of its Conventions in multiple respects.

Over the last 18 months, the Commissioner’s staff have operated as an industrial police force focussing on the activities of some of the more vocal and active union officials including Mighell and Kevin Reynolds of the WA branch of the CFMEU.

It does not seem a priority to the Commissioner to deal with the industry’s biggest problems: neglect of worker safety resulting in an industry average of one death per week, non-payment of employee entitlements, and widespread tax evasion. It’s much better to get Mighell, Reynolds and his side-kick Joe McDonald on tape for use in the election campaign by the Government.

It is against this background that Federal Labor has promised that the Commissioner’s office will continue to operate until January 2010 delaying its previously announced abolition by two years. This move is intended to head off criticism by the Howard Government of alleged union lawlessness in the building industry.

Mighell and Reynolds have not done themselves any favours in all this. Everyone knows about the blokey, combative, no-holds-barred, building industry culture. The employers are up to their necks in it, but at least they have the good sense to shut up about it.

Rudd and Gillard have no choice they either disassociate Labor from this rowdy militancy or otherwise face new Government charges of alleged union perfidy on a regular basis until the election with the Commissioner’s tapes and transcripts, no doubt, serving as fuel to the fire.

Having said all that, an incoming Labor Government, while ensuring the Commissioner takes a tough line against criminal acts, should also compel them to address the larger problems of the industry noted above, and turn away from simple anti-union repression.

There is another way of ensuring that an incoming Labor Government does the right thing, however. The building unions could support New Matilda’s Human Rights Bill. The Bill would implement ‘freedom of association including the right to form and join trade unions ‘; would preclude people being arbitrarily detained and detainees being denied ‘the right to remain silent; and preserve the rights to strike and to bargain collectively.

As for John Howard, he might reflect on what happened to William Pitt after introducing the first Combination Act in 1799. He lost office two years later. Two years on from the BCII Act, an election looms.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.