By Alexandra Marriott
In a case that demonstrates problems of lawlessness in the building and construction industry are far from resolved, the Australian Building and Construction Commission (ABCC) has launched legal action against a CFMEU organiser for his alleged efforts to coerce non-union workers working on a BER project to join his union.
The Fair Work Act 2009 protects employees from such pressures; preventing adverse action from being taken against an employee for membership or non-membership of a union. These provisions effectively mirror the freedom of association provisions set out in the predecessor Act, the Workplace Relations Act 1996.
The Australian reports this week that court documents submitted by the ABCC allege that the CFMEU organiser, Mr George Bollas, contravened the Fair Work Act by taking adverse action against another person who was not in a union.
Mr Bollas allegedly represented the need to be in a union, saying to one of the workers “It’s compulsory to be in the union to work on this site and you can pack up your tools and go unless you join.”
One of the workers said he was not going to join, as it was not compulsory, to which Mr Bollas allegedly replied: “If you guys don’t want to join the union, I’ll shut down all the other school sites Multiplex is running and sit everyone in the sheds until you boys become union members.”
The watchdog alleges he breached the legislation by threatening to take action against this worker with intent to coerce them to join a union; and that he knowingly or recklessly made a misleading statement about a person’s obligation to join a union.
The maximum penalties for a contravention of the Fair Work Act are $6600 for an individual and $33,000 for an organisation. The case is being heard in the Melbourne Magistrates Court on May 30.
The case is particularly prescient as the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill is scheduled for hearing in the 2011 Winter Parliamentary sittings.
If made law, this Bill will devolve the function of the ABCC to a ‘specialist division’ of the Fair Work Ombudsman, thus giving effect to the Government’s election commitment to abolish the ABCC and transfer its responsibilities to a specialist Fair Work inspectorate.
While the Government maintains that this office will be ‘a strong cop on the beat’ in the industry, it looks certain to become a toothless tiger, given the recommendations of the Wilcox review. Crucially, the Bill – in line with the Wilcox review – contains a sunset clause for the coercive powers of the ABCC, which have been critical, along with other powers, to ABCC’s success.
VECCI has maintained the need to retain the ABCC, given the long history of lawlessness in the Victorian building and construction industry, and the improvement in our international competitiveness the role of the ABCC has facilitated. This case demonstrates that there remain acculturated and accepted behaviours in the industry that are far from resolved.