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Self-employed protection from Australian unions

9 June 2010


There's nothing wrong with unions. In fact, there's a lot of positives with unions. What is wrong with unions is when they act like bullies!

There have been two important recent announcements covering protections from union bully tactics.

  • The first is to do with a decision from the industrial relations commission (FWA). It has declared that union enterprise agreements cannot be forced on to outsourced suppliers. This affects self-employed people in particular.

  • The second is the decision of the Federal government not to reappoint Mr John Lloyd as the commissioner for the Australian Building and Construction Commission. Few people realise how important John Lloyd has been in protecting self-employed workers in the commercial construction industry from intense bullying, and even violence.
Here are the details:

Protection from being forced into a union agreement

 For a long time, unions have used a particular tactic to try and force union agreements and membership. It's a legal scam that works like this:

When a union creates an agreement at one company, it has inserted into the agreement a clause that says that if the company uses outsourced people for work, the outsourced people must also have an agreement with the union. By controlling agreements in one major company in an industry sector, the union is able to 'cascade' the same agreement to numerous other small companies and, ultimately, to self-employed people throughout the industry. Through this, they force uncompetitive conditions on self-employed people whether they want it or not.

This has been a strong union tactic, particularly in the commercial construction sector, but it's been used in manufacturing as well. The people most affected have been the small tradie subcontractors. Imagine being a brickie with an apprentice and that to work on a construction site you have to have a union agreement yourself! It's really a form of extortion.

The Howard government's Work Choices laws outlawed this generally, and was reinforced with special additional laws in the commercial construction sector. Rudd's 'Fair Work' laws seemed to make this activity illegal as well, but it was unclear. Now a decision by the industrial relations commission (Fair Work Australia) has declared that such clauses in agreements are 'not permitted' (that is, are illegal).

In other words, a union cannot put into a workplace agreement at one company a clause that forces 'outsourced' suppliers---(eg) plumbers, electricians etc---to have a union agreement as well.

There will probably be more legal wrangling over this, which is what always happens with industrial relations law. However, this decision was by a Full Bench of the FWA, which means that it's fairly solid.

Here's the link to the case.

Protection from thugs in commercial construction

Union thuggery in commercial construction has been a feature of the industry for many decades. In 2002, the federal government commissioned a Royal Commission to investigate. The final report exposed the extent of the thuggery in the industry, and made recommendations as to how to enforce the rule of law in the industry.

Chief amongst the recommendations was the setting up of a special authority to police the industry. The Australian Building and Construction Commission (ABCC) was modelled along the lines of the Australian Consumer and Competition Commission (ACCC).

The ABCC began operating in late 2005. The scale of their success is enormous, with a massive drop in industrial disputes occurring on commercial construction sites.

What's rarely realised, however, is the extent to which the ABCC has actively sought to protect the thousands of individual independent contractors, the subbies, the brickies and so on, who work in the industry. One brickie we met, a 58-year-old Austrian immigrant, told us that he'd spent his entire life working in the industry under a cloud of fear. With the ABCC active on the ground, that fear had been lifted.

But the job continues. A 24-year-old welder told us of his constant fear when working on the Westgate Bridge project in 2009. Daily, he was told by union heavies to 'watch his back' and 'it's a long way to fall into the Yarra mate'! He left the lucrative work in late 2009, unable any longer to tolerate the intimidation. During 2010, the ABCC is in the process of bringing successful action against lawlessness on the bridge project.

What's also rarely realised is that the ABCC has a special brief to protect and look after the interests of construction independent contractors. Further, the head of the ABCC, John Lloyd, had a long and firm history of standing up for independent contractors when he was a senior bureaucrat in the public service. John was the federal government's representative at the International Labour Organisation in 2003 in the battle there to defend the rights of self-employed people.

Now the Rudd government proposes to close down the ABCC. The only thing stopping them is the opposition to this from the Abbott opposition and Senator Steve Fielding in the Senate. Rudd's ABCC destruction legislation cannot pass if Senator Fielding continues to vote against it.

The government's determination to close down the ABCC directly threatens the ability of self-employed people in the commercial construction sector to go about their work in peace and with safety.

The government has now decided effectively to sack John Lloyd by not reappointing him for a second term as the head of the ABCC.

The Rudd government is doing whatever it can to weaken the ABCC and the protections given to self-employed people in commercial construction.