Criminal charge unprecedented attack on workplace safety

The trade union royal commission, in just three weeks, has attempted to unwind over a decade of work to improve the culture of safety at construction sites.

Three years ago, the ACT Government released the Getting Home Safely report. The report was in the wake of three deaths on construction sites and a high number of serious safety incidents. Following the release of the report, the ACT Government accepted all twenty eight recommendations.

The report identified a cavalier attitude towards safety by construction contractors and subcontractors. The report stated:

“In a large industry with many sub-sectors, a variety of employment arrangements and a high degree of mobility and transience, unsafe and unethical companies have been able to operate alongside companies with a good corporate ethos… in a highly competitive industry with low levels of regulation even a small number [of unsafe companies] can force standards down across the sector”

The report also focused on the dangerous attitudes by those “unsafe” construction companies who viewed workplace safety as a burden that decreased profit margins. Many construction contractors openly complained that safety was little more than a drag on profits.

“Those that didn’t openly claim it,” said the report, “nonetheless saw little value in striving for anything more than a level of compliance that would be acceptable to the regulator.”

The past three years has seen concerted efforts by the Government, WorkSafe ACT and unions to challenge the unsafe, unethical culture and behaviour of construction companies.

The ACT’s safety record on construction sites, as reported by The Canberra Times last month, is still the worst in Australia, although the situation is improving.

Last week, amidst the sensationalised reporting on the royal commission, the counsel assisting, Jeremy Stoljar SC, undermined that work.

Interviewing the owner of a commercial construction company, Mr Stoljar decided to repeat, for the record, the contractor’s claim that “if you look hard enough you will find some safety risk because it’s a construction site”.

The contractor was complaining that a union official from the construction union had attended a building site after receiving reports of serious safety concerns. The company owner blocked the official from entering the site, despite the fact that he had a lawful right to inspect the safety breaches.

Under cross-examination, the company owner conceded the safety problems on that site were widespread and serious. There is no such thing as a “minor” safety issue on a construction site.

Mr Stoljar then re-examined the company owner, and described the safety concerns as “housekeeping” matters.

As of 31 July, ninety-two Australians have been killed at work, twenty-three of them working on construction sites. It is utterly unacceptable to describe safety as a “housekeeping” matter.

On Wednesday, union official Jonny Lomax will attend the magistrate court. His supposed crime: asking a construction subcontractor to sign a collective agreement.

Collective agreements are one of the principal ways that the unethical, unsafe behaviour of construction companies – the attitude that safety and workers’ rights are “burdens” – can be challenged.

Australian and international research shows that workplaces with a collective agreement are significantly safer than workplaces without a collective agreement.

In the worksite in question, Mr Lomax was bargaining with a subcontractor who was working on a building site where the head contractor already had a collective agreement. That head agreement had a clause that required it to engage subcontractors on “the same terms and conditions of engagement (or terms no less favourable) as they would receive if they were engaged as employees”. These are the uncontested facts of the case.

By asking the subcontractor to sign a collective agreement with the same terms as the head agreement, Mr Lomax was simply enforcing the terms of that head agreement.

It is unprecedented and deeply worrying to criminally charge a union official for exercising a lawful right to collectively bargain.

It is worth repeating. Collective agreements are one of the primary tools that workers and unions can use to challenge the unsafe, unethical culture that once pervaded the ACT construction industry and instigated the Getting Home Safely report.

If the Magistrates Court deems legitimate bargaining and enforcement as “blackmail”, then it will set a dangerous precedent that could affect the entire country.

A worker or a union official seeking to enforce their legal rights under a collective agreement could face criminal charges for “menace”.

Asking for safety improvements, in an industry that views safety as a profit “burden”, could result in criminal charges for seeking to cause a “financial loss”.

This case has the potential to undermine the safety and workplace rights of every worker in the ACT and beyond.

UnionsACT is deeply concerned, not just at the contempt that Mr Stoljar has shown towards promoting workplace safety in Australia’s least safe jurisdiction, but at the potential undermining of our entire industrial relations system.

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