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Issue No. 140 | 14 June 2002 |
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Abbott's Rule of Law
Interview: Party Girl Unions: Touch One, Touch All Industrial: Condition Critical International: Innocence Lost History: Strange Bedfellows Organising: Just Say No Review: Choosing Life Beneath The Clouds Poetry: Did We Make a Big Mistake
The Soapbox The Dressing Room The Locker Room Week in Review Bosswatch
 Luke and LearnDue CreditTom's FooleryMore LathamMore Tom
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News Building Workers Gagged By Commission
There were strong objections from CFMEU lawyers when Counsel Assisting, Nick Green, announced the decision as this week�s hearings wound up on Thursday afternoon. CFMEU counsel Steve Crawshaw protested it was an "amazing" way to run any inquiry. "I have been involved in many inquiries, including the Gyles Royal Commission, royal commissions, inquests, inquiries, and never have I had it suggested that those conducting the inquiry should only call one side of the story ... "Here, it's been all one-sided. We have heard two weeks of evidence all one-way, and Counsel Assisting don't propose, as I understand it, to call any evidence to the contrary." Commissioner Cole over-ruled the objection, saying there had never before been an inquiry such as his. A Bit Facile It was, Cole contended, "a bit facile to suggest now that there should be a new-found process of co-operation". Cole's decision leaves the theoretical door open for CFMEU members to give further evidence but puts real practical obstacles in their paths. Essentially, each must submit a statement, dealing with hundreds of disparate claims made by a variety of witnesses. Unlike in normal legal procedings, if the union seeks to cross examine at a later date, it must nominate the specific part of the testimony, the nature of its objection, and restrict itself to those matters. So far, the commission has gathered 120 witness statements in NSW and has called just three CFMEU members. CFMEU state secretary Andrew Ferguson was philosophical about the decision, once he had recovered from his initial shock. "I suppose we have come to expect this treatment," Ferguson told Workers Online. "The evidence before the Commission has been unbalanced and this just makes it more so. "You have to remember a Royal Commission is not a judicial process, it is a creation of the Federal Government who determine its terms of reference and fund Counsel Assisting." Nevertheless, Cole's ruling retuns the spotlight to key issues about the way his Commission is being run. Firstly, there is the issue of Counsels Assisting and their roles. There are a dozen or more of them, all high-paid lawyers sharing in a $19 million, taxpayer-funded, bonanza. Theoretically, their role is to collect and present evidence so the Commission can come down with balanced findings. With more than 130 fulltime workers at their disposal they spent months interviewing at least 200 people in NSW and preparing statements. Although the Commission has turned into a forensic examination of the CFMEU, its officials and practises, going back to 1996, they chose not to interview or prepare a statement from a single CFMEU person. Instead, they will wheel up one anti-union statement after another. Some are demonstrably incorrect but all are read into the official record. Strong Moral Obligation In one example, Green painstakingly led CFMEU delegate Mario Barrios into what appeared to be a trap. He had Barrios testify that he and Ferguson tried to keep employers who ripped off the tax and workers comp systems out of their industry. Under further questioning, Barrios testified he paid his own taxes and had a strong moral objection to those who did not. Then Green pounced, seizing on a typical uncontested statement from an employer who said she had once employed Barrios and paid him cash-in-hand. Barrios was able to refute this categorically, and make it clear he had never worked for her company in his life. Other employers, complaining of CFMEU harrassment, have had decisions entered against them in the Industrial Relations Commission, a factor apparently not considering relevant by those leading their evidence and certainly not revealed to the Commission. Hearsay is repeatedly read into evidence and challenges to it have been over-ruled by the Commissioner. A variety of employers have testified to alleged union actions or demands, based on conversations they claim to have had with third parties well after the alleged events. Employers have been asked to give evidence on the views of union members and had their replies accepted as evidence. Increasingly, the rationale for the Commission is being questioned. Theoretically, again, it was set up by Workplace Relations Minister Tony Abbott to inquire into "Innapropriate and Illegal Activity" across the industry. The name, CFMEU, does not get a mention in its terms of reference. In practise, unions argue, it has become a one-trick pony concerned only with worker irregularities and misbehaviour. One major Sydney radio station has laboured under a similar understanding, regularly labelling its reports as being from the "Royal Commission Into Union Corruption". Ferguson has tried from the outset to have immigration scams; tax rorts said to cost the public purse up to a $1 billion annually; phoenixing; wage and entitlement rip-offs; and, most importantly, workplace safety brought under the spotlight. The Commissioner responded by side-tracking most of those issues out of hearings reported by the media and into discusssion papers. Still, he says, they are on the agenda. But, a sharp first-week exchange with Ferguson, left the question dangling, as the official transcript reveals: MR FERGUSON: "I've seen workers on building sites subject to discrimination and intimidation and being sacked for raising safety issues. We have got issues here about safety, misuse of safety by union officials for ulterior motives. I'll acknowledge now union officials have made mistakes, but employers have made the same mistakes. Let's investigate both, not just abberant union behaviour. We know we all make mistakes in society, both sides, not just one side." COMMISSIONER: Mr Ferguson, there is a great regime in every state and under the Commonwealth to investigate departures from occupational health and safety standards. They may not be being implemented as well as they might. That is one of the things that I have made clear this Commission is looking into. "There is at present no organisation, with the exception of the Office of Employment Advocate, which, on the figures given to me today before yesterday (sic), mean that that one person is looking into the operations of about 780,000 people in the building industry, which examines in any way at all the manner which unions operate under the Workplace Relations Act. "That is a major function of this inquiry. There are other major functions, which you have referred to, and I have indicated in the statements I have made the manner in which they will be addressed." MR FERGUSON: "There's 100 statements collected by this Commission. Every single one attacks union behaviour; not one looks at the behaviour of employers. The terms of reference did not just relate to union behaviour, they relate to the whole industry, all the mistakes by all the parties. "I'd like the opportunity to have 50 statements, less than the employers, about aberrant employer behaviour." COMMISSIONER: "Yes, very well, what you have just said is not accurate, but I'm not going to trouble to spend the time debating it with you. We'll now proceed with the hearing." Seven days later, with dozens of CFMEU officials under official notice that adverse evidence will be presented against them, they have been told they will not be called by the Commission to respond.
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