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Star Chamber now under review

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Rachel Siewert 5 Sep 2008

One of the many travesties of the Howard Government was the establishment of the Australian Building and Construction Commission (ABCC) and the enacting of the Building and Construction Industry Improvement Act 2005 (BCII).

Together these represent John Howard's industrial relations agenda at its most extreme - explicitly anti-worker and using the power of the State against individuals in an ideological pursuit.

The Australian Greens have been consistent critics of both the legislation and the ABCC itself. We have never believed in the necessity for industry specific workplace relations regulation of this nature in the building and construction industry, which is why the Greens have introduced a Bill to repeal the BCII Act and abolish the ABCC. We have also successfully referred our Bill to the Education, Employment & Workplace Relations Committee for a full and proper Senate Inquiry.

Many of the details of the BCII Act and the powers and actions of the ABCC have remained out of the public spotlight but these are quite extraordinary laws. Only in the building and construction industry can individual workers be fined up to $22 000 for taking industrial action defined by the legislation as unlawful. This is materially different from other workers taking industrial action who risk being sued but not fined.

I labelled the ABCC a "star chamber" back in 2005 after hearing stories from ordinary workers about the bulling and intimidation they and their families were facing from the ABCC.

These stories included ABCC inspectors, who appear to have waited until a worker has set off to work to serve his wife or partner with a notice while pointing out in a heavy-handed manner that the worker is liable to a large fine or a jail term if they don't cooperate fully. I heard about workers being invited to have an informal conversation by an ABCC inspector, only to learn that the discussion has been recorded without their knowledge or consent. I heard about workers being separated from their legal counsel in ABCC hearings and workers and their legal counsel being denied the right to particulars about the matter they were being questioned on.

The ABCC has coercive powers to compel a person to provide information,
produce documents, or attend to answer questions at an examination. Persons face fines or a gaol term if they do not comply with a request from the ABCC. Lawyers have a limited role and the Commission determine its own practices with a high level of secrecy. There are not too many laws in Australia that deny individuals the right of silence or access to a lawyer of their choice.

These workers are being denied basic democratic rights to procedural fairness and natural justice that all of us take for granted. These workers - who have not been charged with anything and may only be suspected of knowing about an offence committed by someone else - are being treated with fewer rights than someone who has committed a very serious criminal offence.

It is not appropriate to regulate the relationship between employers and employees in a quasi-criminal way. If there is criminality on a building site it should be dealt with by the criminal law.
There have been hundreds if not thousands of workers investigated by the ABCC, with many required to attend hearings and being threatened with gaol if they do not attend and answer questions. Now Noel Washington is facing trial with the prospect of a gaol sentence for refusing to answer questions about what happened at a union meeting.
It is all very well to construct a narrative of overbearing unions creating havoc in the building industry, but these laws attack a bogyman through individual workers and their families.

A potential consequence of the operations of the ABCC is that building workers will be too intimidated to speak out about health and safety issues for fear of being investigated. In an industry that has such a high rate of workplace injuries and death, any laws or regulations that provide a disincentive to speak out about safety issues are unacceptable.

The International Labor Organisation has repeatedly commented that the BCII Act breaches international labor conventions to which Australia is a signatory. The ILO is a tri-partite body and it has found these laws breach the right to organise and collective bargain and the right to freedom of association.

It is almost inconceivable that an ALP Government would consider keeping such punitive and ideologically driven laws. Yet they are taking their time in getting rid of them and are keeping up the rhetoric of a 'strong cop on the beat' when talking about the proposed Specialist Division within Fair Work Australia to replace the ABCC.

It is hoped that Justice Murray Wilcox can bring some sense to this issue in his report on the creation of the Specialist Division for the building and construction industry. He is considering the scope of investigations of the proposed new Division and the powers it may require as well as the rights of persons will be subject to its investigations.

While the Greens do not believe such a specialist division is necessary or appropriate, we would expect that the ALP Government would at the very least scale back the powers and the scope of investigations of the replacement ABCC. Furthermore, we would expect this division of Fair Work Australia to cultivate a culture respectful of workers rights, rather than the aggressive bullyboy tactics of the current ABCC.

The ABCC is an affront to our democracy. Sometimes it seems almost old-fashioned to talk about the human rights of workers in a time when our public narrative is so focused on our economic indicators. But human rights do matter. They matter whether it is refugees being sent to detention centres, whether it is so-called anti-terror laws or whether it is our rights at work.

By referring the our Bill to repeal the BCII Act to a Senate Inquiry, we have started the process of proper scrutiny and review of this unfair legislation. In particular, we are very keen to focus on the powers of the ABCC, the conduct of the commission and its inspectors in the interpretation and exercise of their powers and the extent to which the BCII Act breaches internationally recognised labour standards.

The Greens will not shrink from defending the basic human rights of workers including those in the building and construction industry. The ABCC should be abolished and the building industry regulated just like any other industry -- in a fair and just manner that balances the needs of productivity and the economy with the health, safety and democratic rights of workers.

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