Recent investigations into the Construction Forestry Mining and Energy Union (CFMEU) by the ABC and Fairfax have revealed relationships between rogue union officials, underworld figures and outlaw motorcycle gangs. These connections are alleged to have resulted in extortion, bribery and threats of violence within the construction industry.
Let’s be real - organised crime happens within the union movement. CFMEU President, Dave Noonan, agrees. He also thinks these matters should be referred to the police for prosecution.
Apparently, the federal government takes a different view, suggesting serious crime within the CFMEU should be investigated and prosecuted by reviving the Howard-era Australian Building and Construction Commission (ABCC).
Seizing upon the scandal, employment minister Eric Abetz has said “any argument against the re-establishment of the ABCC has just disappeared out the window”. Prime minister Tony Abbott added that the ABCC will be, “a strong cop on the beat”.
Other coalition voices have pitched the ABCC as “a fighter of organised crime” with “real criminal teeth”. Curiously, however, a revived ABCC will have no power to prosecute serious crime.
Rather, the Building and Construction Industry (Improving Productivity) Bill, which aims to resurrect the ABCC, creates only two criminal offences. Both offences relate to failures to comply with the investigative powers of the ABCC. They are punishable by up to six months and 12 months imprisonment respectively. Incidentally, these powers infringe some of the most basic rights and freedoms known to the rule of law, such as the right to silence and the right to legal representation.
The ABCC and the law
Essentially, the ABCC is a civil law regulatory body designed to monitor and enforce industrial law. The substance of the ABCC’s work involves civil prosecution of building workers and the CFMEU for exercising industrial rights in accordance with international labour law. Perhaps the government could be forgiven for confusing these extraordinary industrial law powers with the coercive power of criminal law.
To date, the federal government’s crusade against “fair work” for construction workers has been motivated by an economic imperative to “improve productivity”. The government’s evidence for this claim is questionable. But if the productivity enhancing powers of the ABCC have lost credibility, it appears a new imperative of “stamping out corruption” might wash better. This one even comes with moral panic about outlaw motorcycle gangs!
The causes of organised crime infiltrating organised labour are well documented. The North American industrial relations landscape throughout the 20th century demonstrates that weakened trade unions increasingly rely on other, more nefarious means to secure the rights of workers.
In the 1940s and 50s, US governments introduced industrial legislation that persecuted unionists and disincentivised union membership. Accordingly, organised labour looked to organised crime to “lean on” employers who would not accept union organisation. In turn, organised crime required payment through union pension or superannuation funds as well as shares in labour hire agreements.
The Nixon administration responded to this phenomenon by implementing the Racketeer Influenced and Corrupt Organizantions (RICO) Act 1970. In effect, the RICO Act busted unions through a “crackdown” on organised crime. Union officials were prosecuted and sacked while the federal government centralised control of unions. With organised labour firmly in the hands of the State, unions lost their independent power to bargain with the State and Capital on behalf of workers. Perhaps this is what the federal government has in mind for the CFMEU.
The preservation of industrial democracy requires that all sides – unions, employers and the State - uphold the rule of law. This means that when serious crime is committed, it must be referred to an appropriate arm of the State for prosecution. State and federal police forces, their allied public prosecution agencies, as well as the Australian Crime Commission, all have extensive powers of criminal investigation and prosecution. The proposed ABCC is unfit for this purpose. It does not possess the power to prosecute serious crime, and nor should it.
Meanwhile, the investigative powers of the ABCC breach the rule of law in the name of upholding it. In this context, a revived ABCC is code for an authoritarian urge by the federal government to create a specialised workforce police targeting workers and their unions.