Workplace Safety Must Reign over Union Matters 7

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Tuesday, April 19th, 2016
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Construction safety
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Whenever someone dies at work, a tragedy has occurred, and the victim’s family, friends and community are forced to endure a terrible loss.

Whilst one life lost at work is one too many, sometimes the tragedy is further compounded by the fact that the death could be avoided through implementation and monitoring of proper safety procedures.

I say at the outset that regulating safety does not fall within the jurisdiction of Fair Work Building and Construction (FWBC). Each state and territory has dedicated specialist safety authorities responsible for regulating safety and, where necessary, prosecuting wrongdoers. Workplace safety and concerns should be referred to these agencies to ensure that all workers on site, whether employees or contractors, can work in a safe and lawful environment.

Sadly, this arrangement has not prevented misleading public commentary from some individuals who have attempted to smear the agency as being ‘anti-safety.’ I am frustrated by those falsely claiming that FWBC does not care about the lives of workers in the industry. Whilst there has been a 36 per cent decrease in the number of fatalities per 100,000 workers in the construction industry since 2002/03, a single fatality is one too many.

Clearly safety is a topic of fundamental importance to the building and construction industry. The construction industry ranks fifth compared to all other industries, with 2.35 deaths per 100,000 workers. The magnitude of the issue can draw out powerful emotions. Unfortunately, these emotions can also be exploited by some for industrial agendas.

Safety is an important matter for all of us, no matter what the industry. However, what concerns me is the implied assertion that to profess an interest in promoting safety provides a justification to break the law, especially where laws are broken for another agenda.

It is the investigation of unlawful activities that sees FWBC have a rather unfortunate connection with safety in the building industry.  FWBC has a responsibility to ensure that union officials obey safety laws as a condition of their right of entry permits under the Fair Work Act 2009.

Trade union officials have the potential to play a key role in ensuring workplaces are safe. Those union officials who hold a valid federal right of entry permit are allowed to enter construction sites under certain conditions. In particular, these requirements include obeying the safety rules on that particular site. These instructions embrace fundamental obligations such as wearing appropriate protective gear and staying out of exclusion zones. Site safety rules are designed to protect not just union officials, but the workers as well.

It would be foolish for me to deny that there are safety issues which require investigation on Australian construction sites. I see the potential for union officials to play an important role in addressing these problems. However, they must do so within the law. Using bogus safety claims to obtain entry to a site for non-safety purposes, or to further industrial agendas, creates a dangerous situation for future incidents where a genuine safety issue might exist.

It is important to understand that under the law, it has never been considered industrial action for an employee to stop work when they hold a genuine concern for their safety. Nobody would disagree that when there are genuine imminent risks to people’s safety, work in the affected area should cease immediately. Sadly though, every time a union official uses a bogus safety claim to gain access to a site only to push an industrial agenda, it undermines the very system established to protect workers when a legitimate safety issue occurs.

Simply put, I increasingly fear that this malpractice will become a case of “the boy who cried wolf.”

The Construction, Forestry, Mining and Energy Union (CFMEU), in particular, has a proven track record of using bogus safety issues to get on to a site to pursue an industrial program.

Take a recent example from Queensland involving CFMEU official Scott Vink at the Pacific Fair Shopping Centre redevelopment. Vink purported to enter the site for safety reasons, only to proceed to the site sheds where he threw workers’ lunches and belongings outside and padlocked the shed closed.

I cannot see how these actions improved safety on that work site and neither could Judge Salvatore Vasta of the Federal Circuit Court, who last month described Vink’s actions as “sheer thuggery” in handing down near maximum penalties to both Vink and the CFMEU.

In fact, Judge Vasta found Vink’s actions to have no other purpose than “to intimidate the employees and to reinforce to others at the building site, the notion that non-union membership is not going to be tolerated.”

In other words, safety was not on Vink’s agenda.

Regrettably this is not an isolated incident. In a case brought by FWBC and determined in 2014, three CFMEU officials cited safety as their reason for entering a Brisbane building site. Ironically, when they were approached by the site foreman and asked to wear correct personal protective clothing, they responded with “I don’t have to answer to you, you f*cking little grub” and “you’re a d*ckhead.” The foreman was then called a “f*ckwit, deadbeat, d*ckhead” for daring to suggest the union may want to comply with the site safety procedures. So what was the purpose of this visit? The officials were found to be carrying a mobile EFTPOS machine for the purpose of collecting union dues.

“Conduct that jeopardises safety is to be discouraged, particularly by those who profess to police it,” said the Judge presiding over this case.

“Plainly, these experienced industrial organisers were more interested in grandstanding by engaging in provocative behaviour in the presence of workers on the site, notwithstanding their presence onsite purportedly being in respect of safety issues. Undoubtedly their behaviour was directed more to recruitment and membership retention than any other object.”

As illustrated by these examples, there are some who see safety as a golden ticket permitting access to sites and workers so that other agendas can be pursued. It is this type of behaviour that has resulted in more than 100 individual CFMEU officials currently standing before the courts or the Fair Work Commission.  They face over 1,000 contraventions in matters brought by FWBC.

All FWBC asks is that union officials, like everyone else, perform their role within the law, namely the Fair Work Act. Incidentally, the Act has been in place for more than six years. To suggest that having to comply with legislation that has stood through successive governments is somehow an attack on safety or on workers’ rights does not make sense. Enforcing the Act is something that FWBC will always strive to uphold.

By: Nigel Hadgkiss, Director, Fair Work Building and Construction
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Discussions
7
  1. lou sarri

    DEREGISTER THE CFMEU THEY ARE THE CRIME LORDS OF THE CONSTRUCTION INDUSTRY.

  2. Ian Johns

    As said above, what union officials did in the above instances was disgraceful. Using safety as a mere excuse for the purposes of pursuing industrial agendas completely undermines the real important message about the importance of a safe work environment. Indeed failure to observe safety rules does, as stated above, put the safety of the very workers for whom they are supposed to represent on site in jeopardy. And what kind of message does a union officilal who fails to observe safety procedures send to the workforce? The message is that safety is actually not important at all.

    Every worker has a fundamental right to operate in a safe environment and to go home safe to their families. Someone should explain this to the union who is actually supposed to represent their interests.

  3. J-Lo

    Really? If it wasn't for marching with the union over the past 3 decades, you wouldn't have rdos and certainly not a four day weekend coming up. Long service leave, clean facilities (ever been on a non union site? Judge it by the toilets… If they're not just portaloos). Structured pay, someone making sure your super is up to date and mental health support and to and from work insurance. Shall I keep going? My membership covers ambulance and travel insurance for my family, a free picnic day to theme parks once a year for my family, free legal advice and it's all tax deductible.
    This notion that the unions are slowing down "productivity" is just framed bullshit.
    With such a low rate of membership across the country, what major power do they really wield?
    Get the wages right, get the facilities right and the job will go right.

    • David Chandler

      J-Lo, the golden days of rewards with no counterbalancing economic benefit are over. Just ask the auto workers and the steel workers. They would be happy to give back some of their perks to have jobs in a viable sustainable industry. Alas it has been a war of ideology and power that has defined construction's prospects for too long. It is little wonder that less than 8% of construction workers under 25 years old are members of a union. They have nothing modern to offer. I have seen the battles for RDO's, Shopping Vouchers now Site Allowance but these costs and the practices that surround them are simply relicts of the past, just as are most of constructions non- industrial practices. Just like in the steel and auto industries management has been out for lunch for so long they have taken their eye off the ball in the comfort that they can blame the unions for all their woes. The ABCC debate has been clothed in ideology, that must and can change. The Labour Parties at both Federal and State levels need to weigh in with more than the CFMEU diatribe that they have to date. Just calling for the effective nationalisation of the steel industry by requiring all public projects to use Australian steel is not a plan. The public has been subsidising the gravy train for too long. They now pay more for housing, education, health and transport as a result of Australian Construction's out of control costs and lousy productivity. Unless both sides of politics bring more to this debate than they have to date we may as well resign to digging deeper holes, exporting raw materials to other smarter economies until we have finished scraping our rock just like Nauru has done with phosphate. I hope for a better future than that. So do you.

  4. David Chandler

    FWBC Commissioner Hadgkiss has been doing a great job exposing some of the rotten core that has defined construction in Australia for too long. It goes back to the BLF days, but as successive Royal Commissions into construction have found industry lawlessness is wide spread. The construction industry is in need of special attention. It is unlike banking and the other industries. It is hostage to a status quo who want it shielded under a bush suggesting construction just falls into a common regulatory bucket. Construction has structural problems from the ground up. It is undercapitalised, it is risk adverse, it seems to expect a divine right to to avoid accountability, and most of all its customers are getting a bad deal. These are more than regulatory issues. The go to Australian construction's unsustainable costs and poor productivity. These issues alone will confound attempts by the PM to create an innovative hot bed to create new construction industry enterprises and jobs. Measurably lifting construction productivity is the key to unleashing the potential of this industry to lift its sustainable future trajectory. I am pleased that a lot of thinking around this is now gathering at Western Sydney University under Dr Mary Hardie's efforts. Its fundamental to turning around the debate that saw the ABCC legislation voted down this week. Yes establishing the rule of law for the CFMEU is fundamental, but accompanying this must be definition and measurement mechanisms which will define improving productivity as a result. Malcolm Turnbull had little space to move in this conversation having been burdened with the ideological battle inherited from Abbott and Abetz. Hopefully the ABCC may be re-calibrated and re-launched.

    • Michael Bonnici

      Perhaps you are correct David , however you appear to be taking a fundamental academic approach to this problem and the statements that you are making ,… sure the CFMEU have shown themselves to have ,shall we say poor judgement issues however the truth is that there are bigger issues within the construction industry with regard to WHS enforcement, in fact ,having worked in this industry for both Union and Non Union sites I have found the WHS implementation and control far better on Union sites.
      I have been on sites that have had deaths occur it is not something that you forget … ever…….. but for all to make assumptions that current regulations and the CFMEU are the mainstays of the problems is ludicrous.
      Worksafe has made investigations in to worksite deaths with no charges laid ,in fact the witnesses onsite where not even interviewed…… Time and Time again I have witnessed companies engage work practices the are either adverse to WHS law or skirting the fringes of it because the dollar counts and to make matters worse they get away with it…….. this will never stop until all take it seriously enough……. Governments setting up toothless entities,commissions and laws to help the workers, Unions concentrating on looking after their members interests and not the politics , Dodgy Employers/Companies reducing their never ending quest for profit at the expense of employees/subbies.
      You want productivity to increase then ensure that non Union sites in construction and I am talking about Industrial, Commercial as well as Domestic are better policed, proper wages /salaries are paid and improve the conditions of work sites for all and you will see a difference…. accountability , Yes but it has to be for all facets of the industry

  5. Les Williams

    How frustrating. We can talk about productivity – recalibration and relaunching all we like but until we address the main issues plaguing this industry I fear we are wasting our time – matter of fact I know we are. Cole and Heydon Royal Commissions were narrowly focused on workplace issues and as a result were a predetermined outcome. Cole did however provide a good and effective report but the problems regarding the menacing cultures he uncovered were only assigned to one sector of the industry simply because of the restrictions from the terms of reference. Heydon was simply conflicted — $40m to get a couple of union thugs before a court and avoid the real criminality that besets this industry. Until we understand that the major problems that beset this dishonest industry do not start in the workplace but that they end there then we are wasting our time. I am not an academic either I am a humble civil engineer and civil engineering contractor of 40 years but like most of my colleagues I have a very serious commitment to WHS and environmental issues and I am tired of being continually requested and continually refusing to abrogate those responsibilities by large construction companies. Nobody condones thuggery but I fear that the union issue whilst it is an issue is becoming a mask for bigger industry problems that we simply do not wish to address.