Labour law researcher Chris White presents a background report on the prosecution of 107 construction workers involved in a strike on the Perth-Mandurah railway project.
The unprecedented prosecution of 107 construction workers for striking on the Perth-Mandurah railway project by the Australian Building and Construction Commission (ABCC) raises key issues in the IR debate. This prosecution of individual employees commenced on the 29th August in the Federal Court, with nationwide solidarity rallies protesting against the government’s politically motivated attack on Australian unionists.
The ABCC seeks to enforce the new Building and Construction Industry Improvement Act 2005 (BCII Act). One of the key purposes of the BCII Act is the removal of an employee’s right to strike. By penalising individual workers, in this case members of the CFMEU, the Act allows for the destruction of the union and its primary aim of representing workers. The formerly legitimate building union bargaining practice of industrial action is now unlawful, denying workers the right to strike.
The ABCC alleges that from February 24 to March 3 this year, 107 employees breached the new BCII Act offence of taking “unlawful industrial action”, while eighty-two of those workers also breached an Australian Industrial Relations Commission (AIRC) order. The workers walked off the job over the sacking of CFMEU shop steward Peter Ballard and are now facing individual fines of up to $28,600 if the ABCC is successful in its prosecution. The CFMEU scheduled several meetings urging employees to return to work immediately, but they continually refused, finally returning to work on March 8. Ballard and the company Leighton-Kumagai Joint Venture, LKJV, reached a settlement for his unfair dismissal which he donated to charity, as he did not want the company’s “blood money”.
Contractor LKJV required workers on the 1.6 billion railway project to work fifty-six hours a week plus overtime and the troubled project saw many workplace grievances. The employer had earlier obtained an AIRC order over a series of work protests and ‘go slows’ over continuing grievances and OHS, as well as the ‘blu flu’ tactic (when all members call in sick). The WA Supreme Court then enforced this order by banning all industrial action (except OHS). The contractor is seeking $200,000 a day in damages from the CFMEU.
CFMEU delegate Mal Peters told Workers On-Line (issue 315): “It’s like World War Two over here. The guys are shell shocked but they are standing together. It’s been a non-stop campaign of intimidation. One safety rep went away on holiday and found he had been replaced when he got back. A tunneler who raised a safety issue was moved out of the tunnel to the far end of the job. They sacked another good bloke who stood up for his mates, Charlie Isaac, and then they sacked [shop steward] Peter [Ballard] when the new laws came in. I have already had two written warnings and I know they are after me but somebody has to stand up and tell the truth.”
Peters said workers were shattered when ABCC agents started delivering writs to homes: “They thought they had weeded out all the staunch guys but nobody is going to put up with this, not in Australia. Blokes are really arcing up. When we went back to work, months ago, Leightons promised not to pursue legal action and they haven’t. These writs, and the threats to people’s homes, are the government’s doing” (Workers Online 319).
Peters toured Australia criticising the prosecutions while on annual leave and was sacked on his return for “operational reasons”.
The prosecution of these workers and unionists is an attempt by the Howard Government to bolster its law and order campaign against ‘militant’ unionists, ensuring the fight against penal powers remains central in the IR contest. As ACTU President Sharan Burrow said, “these members are at the forefront of the most punitive set of IR laws anywhere in the democratic world”.
The CFMEU national secretary, John Sutton, said the charges “should be of concern to all Australians who care about democratic rights. This is not a case of workers taking industrial action, being docked pay or even about the employer attempting to recover for economic loss. It is about the Howard Government launching prosecutions that could see ordinary working Australian families lose their homes as punishment for standing up for their rights” (Workplace Express, 6th July 2006).
One of the 107, father of four John Pes, said he was having difficulty meeting his financial commitments without a fine to add to his troubles. But he said he had no regrets about taking strike action and had done what he believed was right. Pes said he had thought the issue was long past, having left his job on the Perth railway project more than three months ago.
“At the end of the day, your beliefs are what you have. Some things that you do have consequences and we just have to fight on.” He said, “Lock me up. I won’t pay fines for striking.”
Although these prosecutions came as a surprise, they are a sign of things to come. The Commissioner of the ABCC had earlier told the HR Nicholls Society that the Commission is using its full legal powers and will continue to be active.