RMIT ABC Fact Check
December 05, 2019 09:19:33
As part of the Federal Government’s efforts to draw support for tougher union penalties under its proposed Ensuring Integrity Bill, Attorney-General Christian Porter has repeatedly criticised the Construction Forestry Maritime Mining and Energy Union (CFMMEU).
Mr Porter, who is also the Minister for Industrial Relations, told Parliament in July that the CFMMEU was “the most unlawful organisation in the history of Australia’s industrial laws — the most, including the BLF [Builders’ Labourers Federation].”
A few days earlier, he told Radio National: “[Y]ou’ve got one particular union which everyone clearly believes has a history of unlawfulness which is completely unprecedented … The point is there has never been … an organisation in the union movement more unlawful than the CFMEU [sic].”
Is the CFMMEU the most unlawful union Australia has ever seen? RMIT ABC Fact Check investigates.
Mr Porter’s claim doesn’t check out.
While the CFMMEU has repeatedly and deliberately breached legislation governing industrial action and conduct in the workplace, chalking up more breaches and more fines than any other union in the past 25 years, historical records show that its unlawful behaviour is exceeded by that of other unions in earlier decades.
It is clear from Mr Porter’s reference in Parliament to the 1986 deregistration of the Builders’ Labourers Federation that his claim about the CFMMEU is intended to encompass all union conduct, including that occurring before 1993-94 when the Industrial Relations Reform Act 1993 ushered in the modern industrial relations period.
In drawing the timeline back before 1993, though, Mr Porter does not take into account that all forms of industrial action in Australia were considered unlawful under federal and state laws and at common law.
The unlawfulness of the BLF’s relentless industry-wide intimidation, violence, extortion, sabotage and financially-damaging stoppages, as well as its flagrant contempt of the courts, is widely documented, and clearly surpasses the actions of the CFMMEU.
What is ‘unlawful’?
For the purposes of this fact check, unlawful is taken to mean not lawful; contrary to law; illegal; not sanctioned by law [Macquarie Dictionary].
An action is also unlawful if it transgresses common law or if it breaches a contract, including a workplace contract, agreement or award.
Butterworths Concise Australian Legal Dictionary defines an unlawful act as “an action that infringes a statutory or common law prohibition”.
It also notes that “[a]lmost all industrial action involves a breach of the contract of employment or industrial legislation, and so amounts to the tort of ‘unlawful means conspiracy'”.
There are two ways to consider “unlawfulness” as referred to by Mr Porter:
- In the context of all laws, including the criminal law; and
- In the much narrower context of industrial disputation and the laws that have restricted or protected such action since 1904.
The context in which Mr Porter has used of the word unlawful invites the first, much broader interpretation, one that includes the full range of criminal acts such as murder, manslaughter, attempted murder, extortion, corruption, assaults, fraud and theft. All of these offences have occurred in the history of the Australian union movement.
Fact Check has taken “most” in Mr Porter’s reference to “most unlawful” as meaning the number of breaches and/or the gravity of the offences.
What is the CFMMEU?
In 2018, the Construction Forestry Mining and Energy Union (CFMEU) merged with the Maritime Union of Australia (MUA) and the Textile, Clothing and Footwear Union of Australia (TCFUA).
The merged entity now has around 140,000 members throughout the building and construction sector, mining, forestry and timber industries, maritime industry and on the wharves, furniture manufacturing, clothing manufacturing, pulp and paper industries, and more.
Throughout this analysis, the abbreviations CFMEU and CFMMEU are used interchangeably.
What the CFMMEU has done
The CFMMEU has been penalised for more breaches of the Fair Work Act 2009 than any other union. Mr Porter has cited the CFMMEU’s record of $16.8 million of court fines for unlawful behaviour relating to almost 2200 breaches of legislation since 2002.
The union is also being prosecuted by the Australian Building and Construction Commissioner (ABCC) for breaches of the Building and Construction Industry (Improving Productivity) Act 2016 (previously the Fair Work (Building) Act 2012 and the Building and Construction Industry Improvement Act 2005.
Many of the CFMMEU’s breaches arise from unlawful industrial action, unauthorised entries to building sites by union officials, attempts to bar non-union members from working on sites, coercion, intimidation, and threats made to employer managers.
Concerns about the CFMMEU’s conduct and its aggressive style of unionism have triggered two royal commissions in the past two decades: the 2001 Cole Royal Commission into the Building and Construction Sector and the 2015 Royal Commission into Trade Union Governance and Corruption.
The findings of those commissions, coupled with the union’s many breaches of the Fair Work legislation, have led successive federal Coalition governments to try to tighten laws relating to the building and construction sector.
Figures provided by the ABCC show the courts have levied almost $8.7 million of civil penalties against the CFMMEU since December 2016.
The repeated contraventions by the construction division of the CFMMEU over the past 17 years have been referenced by several judges of the Federal Court and the Full Federal Court: Justice Debra Mortimer in the 2016 case of Director of the Fair Work Building Industry Inspectorate v CFMEU; Justice Christopher Jessup in Australian Building and Construction Commissioner v CFMEU (the Webb Dock case) of 2017; Judge Salvatore Vasta in the Federal Circuit Court in ABCC v Hanna and CFMEU; Justices Tracey, Logan and Bromwich in the appeals case of Broadway on Ann, and Justices Besanko, Reid and Bromwich in the 2019 Parker case on appeal.
Justice Mortimer said what was notable about the union’s activity was “not only the sheer number of contraventions, but the frequency of them”.
She suggested that either “there is a conscious and deliberate strategy” by the CFMEU to engage in “disruptive, threatening and abusive behaviour towards employers without regard to the lawfulness of that action, and impervious to the prospect of prosecution and penalties”, or the union “weighs up the cost of engaging in such action … and nevertheless concludes it is a collateral cost of doing its industrial business”.
Two further points
Two salient points emerge from these Federal Court cases.
Firstly, Judge Vasta in the Hanna and CFMEU case said “it is no understatement to describe the CFMEU as the most recidivist corporate [sic] offender in Australian history”.
“Therefore, in assessing the gravamen of each contravention by the CFMEU, it must be borne in mind that the previous history of the CFMEU does put these contraventions into a category that defies easy comparison,” he wrote.
“While some may want to sanitize this behaviour as an unremarkable workplace contravention, it is far more than that.”
But when that case went to the appeals court, Justice John Logan, while scathing of the CFMMEU, challenged the veracity of Judge Vasta’s “most recidivist” comment, saying: “It is not clear to me what the evidentiary foundation for the latter observation was.”
Justice Logan’s check on the lower court statement is pertinent because the Attorney-General has repeatedly quoted Judge Vasta’s “most recidivist” comment (including in the second reading speech of July 4, 2019), yet he did not mention the higher court’s scepticism about the basis for it.
Secondly, as Justice Logan acknowledged in the Broadway on Ann case, “[O]verwhelmingly … the rogue, outlaw tendency in the CFMEU is to be found in its Construction division”.
He noted a prominent case in which the mining division of the CFMMEU sued a coal mine operator and, in doing so, “commendably served a public interest” by drawing the court’s attention to an employer’s breaches of the Fair Work Act.
To that end, the judge said, “it is an over-simplification to regard the CFMEU in all of its other manifestations as a rogue, outlaw industrial association”.
What the experts say
Breen Creighton of the Graduate School of Business and Law at RMIT University and Andrew Stewart of the University of Adelaide Law School are considered the nation’s pre-eminent scholars on the history of industrial relations and labour laws.
They have co-written one of the leading textbooks on the subject and each is adamant that Mr Porter’s claim is flawed.
“To me, the straightforward answer is the minister is clearly wrong,” Professor Stewart told Fact Check.
“It’s 100 per cent wrong because of the history of industrial relations laws. You can only make what he is saying right if you shorten ‘history’ to just 25 years.
“Before 1994, these were not suggestions where there was a possibility where the industrial action might be unlawful — there was a raging certainty it was unlawful. But most of the legal procedures were focused on getting the action stopped, not getting penalties imposed.”
The Industrial Relations Reform Act 1993 granted workers for the first time a lawful right to strike in Australia. The laws framed certain conditions and periods in which it would be legal for workers to undertake industrial action.
Previously, strikes and lock-outs were specifically outlawed under section 6(1) of the Commonwealth Arbitration and Conciliation Act 1904 which applied from 1904 until its repeal in 1930. But there were other, more limited prohibitions; and, in any event, it became common for awards to contain “bans clauses” that forbade industrial action in relation to work covered by the relevant award.
Joellen Riley, of the University Of Technology Sydney Law School, said Mr Porter’s use of the term “unlawful” was problematic because the laws around industrial action have been particularly technical since 1996, when the Workplace Relations Act was introduced.
Before 1996, “it was sort of pretty easy to break some of the laws around taking industrial action,” she said. “It’s very, very proscriptive now.”
“Before 1993 … there was no right to strike in Australia. The system was designed to avoid strikes.”
Professor Riley said that now, when there was an allegation that either party was not following the rules, they would “very often … go off to the Federal Court for a decision rather than, as it was, the old Conciliation and Arbitration Commission which would try and get them to bang heads together”.
In Labour Law (5th edition, 2010), Creighton and Stewart note that industrial action during the era of arbitration and conciliation was “almost invariably … illegal”.
Further, “a quite extraordinary range of legislative proscriptions”, including state and federal legislation as well as common law restrictions, ensured that “for all practical purposes it was impossible, at least before 1993, for any group of Australian workers lawfully to take industrial action to protect or promote their occupational interests”.
According to Professor Creighton, while arbitration and conciliation courts and tribunals were designed to bring employers and workers to an agreed solution, employers generally believed it was in their best commercial interests, and in the best interests of workplace harmony, to pursue a speedy and amicable end to disputes rather than dragging them through the courts.
If disputes were brought before courts or commissions prior to 1993, the overarching goal was resolution, not penalty. The remedy sought was either an injunction or a restraining order.
Professor Stewart noted that statistics show “a huge amount of industrial action was taken before 1993, much more than today, and at that time unlawful industrial action was clearly the norm”.
“It is impossible to believe there were not more unions that breached the law … you have got huge numbers of strikes being organised,” he said.
“What you have over a period of decades is virtually every union is racking up a large number of contraventions.
“So, the only way you can say what the minister is saying is accurate is if you are only counting this since 1994, or if you take ‘unlawful’ in a particular way — which is ‘unlawful’ because a penalty is imposed.
“Because there is no comprehensive record of what fines were issued before 1993 … the only way you can say the minister is right is if you saw no history before 1994 or if you are defining ‘unlawful’ in a very precise way.”
Ron McCallum of the University of Sydney Law School agreed, saying Mr Porter’s claim was valid only if he was talking about industrial relations laws after 1993.
“I think [the claim] would probably stand up since 1993, but I do not think [the CFMMEU] is the ‘most’ in terms of unlawfulness,” Professor McCallum said, citing the substantial record of strike action during World War I, when labour was in short supply, workers did a lot of overtime, and prices were rising but wages were not.
He also pointed to the many highly disruptive strikes in the coal industry after World War II, and on the waterfront during the 1960s.
Professor Stewart suggested that even if the claim was contained to recent years, the CFMMEU “is not the only flagrant law-breaker. Unions in the state public sectors frequently take industrial action, especially in the education and health sectors, even though there is no way of doing that lawfully in most states”.
Professor Riley suggested that while comparing unions across industrial eras was “like comparing apples with oranges”, the BLF was probably more unlawful than the CFMMEU.
“I would have thought that was correct because they ended up being deregistered, and anyway, I would still think of ‘unlawfulness’ in terms of complying with the industrial laws of the day.”
“Unlawful in the industrial context these days means a whole lot of technical breaches … and, if you think about it, all of us going on these climate strikes, we would be breaching the Fair Work Act because they are not protected action [under the law].
“It seems it’s all very well for the government to make a whole lot of technical laws, and to then turn around and complain [the unions] are acting unlawfully.”
Historical comparisons: some of the big workplace battles
A review of union-based industrial activity in the decades before 1993 demonstrates repeated, prolonged and disruptive strikes, stoppages, go-slows, overtime bans and more, which often consumed single work sites or spread to other sites.
Employers could seek a court order for an injunction against the union action and ask the court to levy a penalty. It was also open to them to sue unions and members for economic damages.
Some of these disputes cost companies many millions of dollars. In a rare case of an employer seeking damages from the union, the 1989 Pilots’ Dispute resulted in Ansett Airlines suing the Australian Federated Pilots’ Association for more than $9 million, though the Victorian Supreme Court in 1991 awarded damages of $6.5 million (equivalent to about $12.42 million today).
The list below outlines a range of major industrial disputes in Australian history. It excludes strikes and industrial actions that preceded the 1904 legislation outlawing strikes.
Also, many unions engaged in work bans, stoppages and other forms of industrial action that would have breached bans clauses in their industrial awards, and therefore would have been unlawful.
While some data is available showing working days lost to disputes, there are no comprehensive statistics detailing all the incidents of industrial action that took place before 1993.
- The Broken Hill mining disputes: led by the Amalgamated Miners’ Association in 1909 and 1915-16, and including the Big Strike (1919-1920), these embroiled several unions and many thousands of workers.
- The 1917 great strike: the action began in NSW in early August 1917 and lasted until late October 1917. Spreading to Victoria, it involved more than 97,000 railway workers, gas workers, waterside workers, coal miners, carters, butchers and more.
- The 1919 seamens’ strike: lasted from May to August 1919, resulting in jail terms for some striking workers, and fines.
- Collie coal mines: the 1947 Royal Commission appointed to inquire into the Coal Mining Industry of Western Australia noted 26,421 working-man days had been lost from 1938 to 1946 due to industrial stoppages alone at the Collie coal mines.
- The 1946-47 Victorian metal trades dispute: involved several unions including the Amalgamated Engineering Union. The six-month dispute included overtime bans, employer lock-outs and multiple-union strikes.
- The 1949 general strike: from late June to early August, 23,000 workers in NSW coal mines went on strike until the Chifley government sent in the army.
- The shearers’ strikes: shearers in Queensland went on strike for 10 months in 1956, and in 1983 a national strike lasted 10 weeks.
- The Queensland power workers’ strike: thousands of Queensland Electrical Trades Union members went on strike for three weeks in February 1985 after the South East Queensland Electricity Board, backed by the Bjelke-Petersen government, proposed using more casual and contracted (non-unionised) workers. Later, SEQEB general manager Wayne Gilbert claimed Australia was witnessing “the demise of rampant and militant union control of this country that we have all seen probably since the beginning of this century”.
- The 1986 Victorian nurses strike: lasting 50 days, the strike was in response to the state’s plan to cut pay rates and work classifications, and involved picket lines, go-slows, ward bans, bed closures and more.
- The Melbourne tramways union strike of 1990: the Victorian government shut down the power grid as tramways workers protested over 33 days against the elimination of tram conductors and introduction of a new ticketing system.
The 1989-90 pilots’ strike: members of the Australian Federation of Air Pilots confined their working hours between 9am and 5pm after failing to obtain a 29.5 per cent wage increase. In a hopelessly misguided attempt to avert legal liability for taking industrial action, all AFAP commercial pilots resigned within a week. The federal government intervened, directing the Royal Australian Air Force to move passengers around the country. The dispute lasted more than 30 weeks, and caused widespread disruption and serious damage to the tourism industry and airline owners. It is said to have caused $1 billion of economic damage, though other estimates run into the billions.
Other forms of unlawfulness
The Builders’ Labourers Federation (BLF)
As part of his claim made in Parliament, Mr Porter suggested the CFMMEU’s unlawfulness exceeded that of the BLF, which was formally deregistered by the federal Labor government in 1986 using special legislation.
The BLF’s record of confrontation instead of negotiation was detailed in the reports of the 1982 Winneke royal commission and was well documented at the time.
The union’s violence and intimidatory tactics, its relentless blockades, bans and stoppages, plus its disregard of criminal and industrial laws, place it among the most unlawful organisations Australia has seen.
Evidence presented to the commission found the BLF had engaged extensively in extortion, mob violence, intimidation, damage to property, “guerilla tactics” to halt and delay construction work, protracted industrial disputation including strikes and bans, corrupt financial practices, demands with menaces, as well as violence and threats against members of rival unions and their families.
The commission heard that when property developers or site managers capitulated to the BLF’s demands, the union often broke its promises and continued to block or shut down building sites, smash concrete pours, impose bans or increase its demands.
The BLF’s influence was so pervasive and its intimidation tactics so disruptive that the building industry’s major operators regularly took what the commissioner called the “soft option” and met the union’s demands, rather than face continued industrial and economic disruption.
In 1985, during the second reading of preliminary legislation to deregister the union, the government told parliament the BLF had treated the industrial relations processes “with absolute contempt”, and had breached undertakings to courts, commissions, the federal government, employers and the ACTU.
The then minister for industrial relations, Ralph Willis, said it was “now patently clear that the BLF leadership is utterly untrustworthy and that it regards undertakings and agreements as mere stratagems to achieve a monetary advantage which can then be disregarded at will”.
In the second reading speech for the 1986 legislation, Mr Willis said the government believed the BLF’s conduct caused “immense damage” to the construction industry and undermined the job security of building workers.
As well, the government believed the BLF’s relentless disregard for the negotiation and conciliation “threatened the very basis of our present system of industrial relations”.
The Painters and Dockers
For unadulterated lawlessness, it is hard to go past the notorious Federated Ship Painters and Dockers Union whose officials in the 1970s were involved in a string of murders, vicious assaults, thuggery, tax-fraud networks, drug-trafficking syndicates, intimidation and more.
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Concern about the activities of the union led to the Costigan Royal Commission, though the terms of reference did not permit any examination of the union on its industrial record.
In his final report, Frank Costigan QC found the union since 1971 had “a positive policy of recruiting hardened criminals”, who were essentially outsourced “to any dishonest person requiring criminals to carry out his project”.
The Painters and Dockers union was “a sophisticated organisation posing as a Union but having as a major purpose an enterprise of a most evil kind”.
He noted 15 murders in which Painters and Dockers members were either involved, or in which the murder was related to union activities and his findings outlined money laundering occurring on an industrial scale, extensive fraud on the social security and pension systems, the so-called bottom-of-the-harbour tax evasion schemes and major drug trafficking networks.
As well, the union’s members engaged in extortion, intimidation, fraud, illegal gambling, drug trafficking, organised prostitution and loan shark activity, and death threats and armed violence were well known at the Williamstown Naval Dockyards.
He noted the union failed to keep proper books and records and failed to account for members’ monies.
Costigan suggested that Painters and Dockers officials were appointed directors of companies due to their fearsome reputation, which would deter approaches by government authorities.
Indeed, the tax commissioner told Costigan that “he would not be prepared to have his officers exposed to the possible physical danger which might flow from close contact with painters and dockers”.
Importantly, while Costigan also detailed the union’s use of industrial action to extort large sums from ship owners and operators in South Australia, he argued that it was criminal extortion in an industrial setting which should be managed under criminal, not industrial, laws.
In separate interviews with Fact Check, Professors Creighton and Stewart each discounted the use of the Painters and Dockers union as a comparator when assessing Mr Porter’s claim.
“They were a tiny union, and to become a member you had to become a criminal,” Professor Creighton said.
“But it was not industrial unlawful conduct so they are not really relevant to what the Attorney-General is talking about. They did [engage in some industrial action], but not to a great extent.”
Principal researcher: Leonie Wood
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- Dalton; Richard, and Groom; Richard, ‘The Right to Strike in Australia: International Treaty Obligations and the External Affairs Power’ (2000) 1 Melbourne Journal of International Law 9
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- Royal Commission Appointed to Inquire into the (WA) Coal Mining Industry (the Mitchell commission), Final Report (28 October 1947)
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- ABC Radio National, ‘An Unhealed Wound: The history of the 1989 Australian airline pilots’ dispute’, 17 June 2001
- Lucas; Clay, ‘Back to days when trams stood still’, The Sydney Morning Herald, 16 January 2010
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- Builders Labourers’ Federation (Cancellation of Registration – Consequential Provisions) Act 1986 (Cth)
- Commonwealth Conciliation and Arbitration Act 1904 (Cth)
- Fair Work Act 2009 (Cth)
- Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 (Cth)
- Workplace Relations Act 1996 (Cth)
- ABCC v CFMEU (The Webb Dock case)  FCA 62 (8 February 2017)
- ABCC v CFMEU (The Castlemaine Police Station Case)  FCAFC 15 (12 February 2018)
- ABCC v CFMMEU (The Bay Street Case) (No. 2)  FCA 1859 (12 November 2019)
- ABCC v CFMMEU (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No. 2)  FCA 1737 (23 October 2019)
- ABCC v CFMMEU (Geelong Grammar School Case) (No.2)  FCA 1498 (13 September 2019)
- ABCC v Hanna (No. 3)  FCCA 2519 (19 October 2017)
- ABCC v Pattison  FCA 1654 (14 October 2019)
- CFMEU v North Goonyella Coal Mine Pty Ltd,  FCA 1444 (10 December 2010)
- CFMMEU v ABCC (The Broadway on Ann case)  FCAFC 126 (14 August 2018)
- Director of the Fair Work Building Industry Inspectorate v CFMEU (No 2)  FCA 436 (13 May 2016)
- DP World Melbourne v CFMMEU  FCA 1209 (1 August 2019)
- Parker v ABCC  FCAFC 56 (5 April 2019)
- Parliamentary Debates, House of Reps, 4 July 2019, p 289 (Christian Porter, Attorney-General)
- Parliamentary Debates, House of Reps, 29 July 2019, p.1188 (Christian Porter, Attorney-General)
- Parliamentary Debates, House of Reps, 8 April 1986 p.1823 (Ralph Willis, Industrial Relations Minister)
- Parliamentary Debates, House of Reps, 20 August 1985 p.58 (Ralph Willis, Industrial Relations Minister)
- Attorney-General Christian Porter, ‘The Government’s Approach to Industrial Relations Reform’ (Speech delivered at 2019 CEDA State of the Nation Conference, Canberra, 19 September 2019 (original speech deleted from Attorney-General’s website, but see cached link.)
- Gilbert; Wayne L, ‘Arbitration in Contempt – The Queensland Power Dispute’ (Speech delivered to the H.R. Nichols Society
- Australian Building and Construction Commission
- Australian Bureau of Statistics, 6321.0.55.001 –Industrial Disputes, Australia, June 2019
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- Australian Council of Trade Unions, History of Trade Unions
- Australian Nursing & Midwifery Federation (Vic Branch), ‘Our History’
November 29, 2019 09:26:40
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