ABCC Rest In Peace – You Won ‘The High Ground’!

ABCC Rest In Peace

You Won ‘The High Ground’!

The Australian Building and Construction Commission (ABCC) has taken a fatal wounding in recent days, as anticipated following the recent electoral win. Going further than the preceding Rudd, Gillard, Rudd governments and delivering an overwhelming victory for the CFMMEU, or is it?

With the ABCC obliterated in 2022 and the return of the CFMMEU, drums are beating, and they are back bigger than ever. Don’t believe the hype; always follow the market. Construction prices have peaked, and private projects and prices are now in a downward trend on new projects. Don’t confuse structural trades with 12 to 18 months of work booked at fantastic prices with today’s reality.

The global uncertainty is stopping new projects, design and demolition work, and key leaders in the industry are slowing. Market forces will always curtail union expectations in the private sector under $200M projects as other forces seek to boost union outcomes in the public sector by tendering practices to achieve inflated level playing fields, costing taxpayers millions to achieve social objectives of 20 to 30%+ above Awards.

What has the ABCC left behind? The Right of Entry laws will stay the same, but a body of Judicial work totalling hundreds of hours will remain, including clear roadmaps on acceptable and unacceptable behaviour like never before. Ignoring site rules, breaching safety procedures, and abusing people is not acceptable while judicially dispatching dozens of excuses or so-called justifications for such behaviour.

What changed on union construction sites last week? Nothing. What will change on non-union projects in the weeks or months ahead during a prolonged construction cycle peak but declining market for any new projects? Nothing. Do you anticipate the number of days lot to increase? Yes, on union sites or a small number of other projects.

Is the union now armed like an Imperial Star Destroyer to economically obliterate construction sites, family businesses and individuals and increase costs? Yes, but that’s nothing new.

I think the ABCC, in their sacrifice, has won The High Ground. The decades process of extracting Millions in fines, and hundreds of hours in Judicial time on unacceptable behaviour, has delivered a very long list of scathing Judicial decisions by a busload of Judges.

I have The High Ground,” said the ABCC….” You underestimated My Power,” said the CFMMEU.

Despite only having 14% of the workforce as paid members, the union movement is politically unstoppable and well-financed, despite multiple royal commissions, about twenty years of an industry policeman, and a completely frustrated Federal Court system continuing to deal with a “rogue union” after endless millions in fines, and costs. The judicial system and current laws are outgunned with the impending cost increase only stopped by a market correction of silence as cranes disappear.

The growing shortage of workers, wage growth pressure and exploding cost increases can only end in silence in two to five years, with construction costs plus 5-8% for builders and cost, plus 20-30% for subcontractors in the short term. In 2022, the construction industry risk profile has continued to change for all contractors, large and small, during a perfect storm of risks.

The Australian Courts finally knew and experienced the unions’ contempt, complete disregard for the law and long frustrations of the construction industry. The election is over, but the court decisions and fines keep flowing for the CFMMEU.

The latest July 2022 verdict confirms the role of the ABCC is completed. It not only confirms the disgusting behaviour of individual union officers but also reiterates the disregard for Courts as an organisation and highlights the limitation on the Courts’ powers to address the union’s behaviour, seemingly out of reach to repeated Parliaments of both Labor and Liberal. The next evolution of new hope must provide the Courts with powers to impose Administrators or other Unions in charge of such rogue unions. The Morrison government had sought to empower the Federal Court to deregister rogue unions but failed.

It’s not that we don’t like the people; we just don’t like the unlawful behaviour.

The ABCC announced on Friday 29th July 2022 the Federal Circuit and Family Court decision in the matter ABCC v CFMMEU & Ors BRG365/2020 has again penalised the CFMMEU and two of its officials $151,200 following right of entry breaches on the Cross River Rail project in Queensland.

In determining the CFMMEU’s penalty, Judge Vasta said:

“The antecedents of the [CFMMEU] are notorious. I have previously described them as the “greatest recidivist offenders in Australian corporate history“, and many other judges have also noted their infamous past.

There is no other “appropriate” penalty that will achieve the deterrent effect necessary other than the imposition of the maximum penalty.

I acknowledge that this penalty will still be insufficient to deter the [CFMMEU] who will, as I remarked during the hearing, regard such a sum as “chump change”. But this is the only tool that the Parliament has given to the Court to deter such contraventions. It is a matter for the Parliament as to whether they wish to give the Court sufficient power to actually deter such contraventions of the FW Act or whether they are content with the status quo.”

Judge Vasta also included observations in the judgment regarding the CEPU on how in contrast, they represent their members. The ABCC’s comparison, published last week, for both Unions in judgments delivered in cases between the ABCC and CFMMEU or CEPU since 2nd December 2016.

ABCC matters are revealing with eighty-five (85) CFMMEU cases with $16,012,263 in penalties compared to the CEPU’s four (4) cases and $288,600 in penalties. We understand the CFMMEU intends to Appeal this matter.

Australia’s 47th Parliament features many new faces and new hope; ask why Parliament has not given the Courts sufficient power to appoint administrators or deregister rogue unions like any other company or organisation.

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For queries about managing workplace relations, union right of entry or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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