“Everyone has the right to form and join trade unions for his or her protection.”
So reads Article 23(4) of the Universal Declaration on Human Rights which was adopted by the United Nations in 1948. Whilst the declaration is not a treaty is therefore not legally binding, it represents an internationally accepted statement of rights which should apply to all people in every country. The ability of everyone to join and belong to a union of their choice is one of these.
For workers in Australia’s construction sector, that right would be denied were the Federal Government to proceed with its threat to deregister the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). When asked on September 4 by radio host Alan Jones on Sydney’s 2UE whether or not he would consider de-registering the CFMMEU, new Australian Prime Minister Scott Morrison declared that, ‘well of course I would’.
Most likely, this would be achieved through the Fair Work (Registered Organisations Amendment (Ensuring Integrity) Bill 2017, which was introduced last year and is currently before the Senate. If passed, this Bill would enable the Federal Court of Australia to cancel the registration of any union whose officials engaged in corrupt conduct or whose members engaged in repeated breaches of workplace laws. It would also enable the Court to disqualify union officials who repeatedly break the law or who fail to stop their organisations from doing so. The Government hopes to work with the crossbench to get this legislation passed.
On the issue of banning union officials who repeatedly break the law, the Government is on the money. Rightly so, the community expects those who occupy any position in their work to go about their duties in a law-abiding manner. This includes unions. Those unwilling to accept this should not be allowed to be union officials.
Such a ban would help to rid construction and other sectors of those who act with disregard for the law. It would do so without compromising either the ability of workers to benefit from legitimate union representation or that of union officials who genuinely operate within the law to continue to work for the best interest of their members. Company directors who repeatedly engage in phoenix activity can be disqualified. So too should any union officials who repeatedly break the law.
De-registering the union as a whole, however, would be foolish, unjust and wrong.
To be sure, much of the culture and conduct within the CFMMEU is appalling. The Royal Commission into Trade Union Governance and Corruption found that there was a culture within the union whereby law-breaking was viewed simply as a way of doing business. Both site mangers and Australian Building and Construction Commission (ABCC) officials have been threatened, verbally assaulted and physically assaulted. Workers who choose not to join the union have been called ‘fu*ken cunts’ and had their lunches thrown on the floor. In financial year 2016/17 alone, the union and its officials had $2.1 million in fines and penalties awarded against them. CFEMU Victorian boss John Setka has threatened to ‘expose’ the personal addresses of ABCC officials – a move which would place them, their family and their children in danger.
Nevertheless, the case for deregistration is weak. That against deregistration is strong and right.
First consider how flimsy the basis of the push to deregister the union is. The trigger for Morrison’s moves rests upon a tweet in which CFMMEU Victorian boss John Setka posted a photograph of his young son and daughter holding a sign which read, ‘Go Get Fu*ked’, and featured an accompanying line which criticised the ABCC.
Sickening though this was, it is hardly justification to deny the union’s 120,000 odd members of the right to be represented by their union of choice. The former Building Labourers Federation was deregistered in several states because of bribery and corruption. Any moves to deregister the current CFMEU should be based on more than just one tweet.
Second, were deregistration to happen, it is likely that workers would simply re-form another union in its place (alternatively, these workers may be picked up by other unions). What this would achieve for law and order is unclear. What it would do is force workers to go through a long and costly re-registration process and deny them the legitimate benefits of union membership whilst this was happening.
Third, there are better ways to deal with unlawful behaviour. As mentioned above, banning officials who repeatedly break the law is welcome. So too is a growing tendency of courts to order union officials themselves to pay fines which they incur rather than having these covered by the union. In extreme cases, union officials who repeatedly break laws should face jail.
Beyond this, there are strong arguments against deregistration.
As outlined above, the right of workers to belong to unions is recognised under the Universal Declaration on Human Rights. To de-register the CFMMEU against the will of its members would be to deny Australian construction workers of this right.
This matters. The Declaration is a statement of what the international community has agreed are rights of every citizen in every country. When it comes to human rights, we must have a core set of non-negotiables which apply to everyone. This includes workers on Australian building sites.
Moreover, deregistration would have serious consequences for workers. Until such time as they are able to join or form another union, they would be denied opportunities to engage in legitimate collective bargaining. They would also be denied union representation in the event of non-payment or under-payment of wages and entitlements and/or unsafe or unsatisfactory working conditions. For workers, this could lead not only to less favourable bargaining outcomes but also the potential to be subject to exploitation, bullying, harassment and dangerous working conditions.
The CFMMEU must be held accountable for its behaviour.
But this should not be achieved by denying workers of their legitimate rights to belong to their union of choice.
The Universal Declaration on Human Rights must apply to everyone. This includes workers on Australia’s building sites.