||Issue No. 150||30 August 2002|
Shut It Down!
Interview: Australian Worker
Unions: Morning Ambush
Cole-Watch: Grumpy Old Men
International: Arrested (Sustainable) Development
History: Illegal Alien
Economics: The Trouble With PPPs
Poetry: Is This 'My Country'?
Review: Garage Days
The Locker Room
Week in Review
Grumpy Old Men
There was the man himself, Terence Rhoderic Hudson Cole, QC, lording it over procedings in the hearing room, and an ageing Sydney Morning Herald journo named Malcolm Brown spilling the beans on the game plan, on a near daily basis, in the adjacent media centre.
The mood swings of the latter, primed on Commission tactics by spin doctor Rick Willis, were enlightening.
Usually, in the morning, he was upbeat and optimistic. This was the day the CFMEU would be nailed he would confidently inform fellow scribes. Terms like "criminal" and "conspiracy" would follow, before deep disappointment set in.
Even, yesterday, on the very last day of hearings, the light of optimism still shone. This, in fact, he suggested would be the day of CFMEU secretary Andrew Ferguson's fall.
"Why?" the informed one was asked. "I know but I can't tell you," he replied.
A couple of hours later, the black funk was back.
"He's answered everything. There's no story in this, there's no #$@/ story," he stammered
And, indeed, on the day after the union launched a sensational challenge to Cole's very right to stage his proceedings, in the Sydney Morning Herald, there wasn't, save for a paragraph in the briefs.
When anti-union evidence had previously been led, much of it later discredited, the SMH had never restricted coverage to its briefs column.
But, believe it or not, this is not a tale of the media. Our man from the Herald was reporting proceedings the way the Commission intended. They didn't pay $700,000, predominantly for Willis, for nothing; and, to be fair, they got value for money.
This is about Cole and why the Federal Court will hear that he rigged the game.
Workers Online has already brought you an in-depth report of the abuses of fair play in the firstCommission-CFMEU Test (Issue No 146) and, from the moment Counsel Assisting Nicholas Green, took the new ball on the opening morning of the second showdown, it became apparent nothing had changed.
Green used his televised opening to full effect.
"May it please the Commission," he began. And there can be little doubt that, if nothing else, it pleased the Commission and Commissioner.
Green announced: We shall examine ...
- the conduct of CFMEU organisers and site delegates on building and construction sites in NSW ...
- whether the CFMEU uses its position in the industry to extract monies ...
- internal workings of the CFMEU.
- the extent to which the CFMEU executive has instructed, encouraged or endorsed the conduct of its officials ...
- sources of revenue for the CFMEU
- the CFMEU's fighting fund
- compliance by major contractors with CFMEU demands
- money laundering and payment to union officials
We will lead/adduce/present evidence, he further promised ...
- of specific examples of compliance by major contractors with demands of the CFMEU to make substantial payments of monies to the union ...
- of alleged corruption by individual CFMEU officials, including organisers and site delegates
- of a concerted campaign by the CFMEU, from about 1996 onwards, to take advantage of the enterprise bargaining process and the use, or threatened use, of industrial action ...
- of the nature and purpose of these donations in respect of CFMEU Picnic Fund, the Honest Uionism Fund, the Cuban Solidarity Fund, and the CFMEU's Fighting Fund
- from an accomplice to such an arrangement who, in collaboration with union officials, used a company of which he was a director to launder money.
What Green, typically, forgot to mention in his opening was that key evidence on funds, and alleged corruption, would, in fact be led, from two former officials investigated and dumped by the union for their own corruption.
Nor did he bother to reveal that he was in possession of four statements from separate employers that these star Commission witnesses had accepted hundreds of thousands of dollars in corrupt payments; sold Viagra on worksites; and engaged in a conspiracy with a group of employers and underworld figure, Tom Domican, to unseat the very CFMEU leaders now firmly in the Commission's sights.
Cole over-ruled objections to that effect and dealt similarly with protests about the partisan nature of Green's opening.
Every TV channel in the country had its item for that night's news bulletins.
Now, try to neutralise all your critical faculties for a moment; forget this was supposed to have been an Inquiry into all parties in the industry rather than a Prosecution of a single player; and stay with us.
In order to pursue the allegations made above, the Commission settled on a tactic of ambush.
Without warning anyone, other than selected journalists, of what was to come they called union witnesses to the stand and hit them with claims and allegations they had never seen or heard before.
It began with allegations over industrial action to extract $142,000 from principal contractors to pay the entitlements of dozens of workers with a failed tiling company. The Herald, duly, and prominently, ran Commission claims that thousands of dollars had been diverted into union fees.
Union secretary Andrew Ferguson showed the following day that a complete misunderstanding of the settlement, and faulty mathematics, had led to the Commission relying on "wildly exaggerated" figures. Counsel Assisting reluctantly accepted his point but it sailed right past the Sydney Morning Herald.
They were still at it on the final day, alleging, somehow, that the union had diverted millions of dollars in back pay claims into its own funds. It was Ferguson's comprehensive destruction of this theory, even without warning of what was coming, that provoked the "no story" concession from the Herald's man at the Commission.
Perhaps the most telling moment, however, came mid-innings, in an exchange which sparked little or no media attention.
Counsels Assisting and the Commissioner, himself, were conducting a fishing trip throught the waters of union accounts.
Hellbent on landing the big one, they probably felt a bit like that Eskimo on the television ad who hooked a killer whale, when Ferguson's replies started coming back.
What, the Commissioner wanted to know, should he make of a number of payments to the CFMEU from state health and safety body Workcover?
Counsel Assisting, Ron Gipp, broke in to suggest there was a "plausible" explanation as Ferguson served on various Workcover boards and committees.
"They are my fees, I don't pocket them," Ferguson explained. "I regard, as I am working for the union, they should go to the union."
Then they turned their attention to BWAC - a CFMEU - Master Builders Association joint venture established to look after unemployed building workers.
"Why" Cole inquired, "would it make a donation to your fighting fund?
Same thing, apparently. Ferguson receives $5000 in directors fees but donates them back, in their entirety.
Then, the Commissioner wanted to know, how the witness could explain a $25,000 payment to his union's fighting fund from the Nine Network Australia?
"I sued Channel 9 and donated $25,000 to this fund and (the other) $25,000 to help the MUA fight the Federal Government," Ferguson explained.
Cole and his counsels, more familiar with that part of society inhabited by Ray Williams, Jodee Rich, Brad Cooper and co, appeared somewhat non-plussed.
The point is that all this nonsense could have been avoided if the Commission had sought to behave in an even-handed manner. Instead of leaping to flawed conclusions and trying to bushwhack union witnesses with concealed evidence, they could have simply asked for explanations and saved themselves a lot of time, and taxpayers millions of dollars.
Instead, their three-man attack of Green, Gipp and Dr Matt Collins were often left to look innocuous and, sometimes, embarrassed.
That really shouldn't happen when your own man doubles as both groundsman and umpire.
In the circumstances, nobody was really surprised when union representatives decided to appeal to a higher authority. Not even the man from the Herald.
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