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.