archive: November 2021

18 November 2021

ABCC ignores safety breaches, polices union manners instead

A recent Federal Court decision — the Beams Lift Case — reveals how WorkSafe Victoria instinctively takes emoloyers’ side in safety disputes, the police back them up, and the ABCC swoops in to prosecute the union for bad manners while ignoring dangerous and deliberate breaches of safety laws by the bosses.

On a West Gate Tunnel project, union members were concerned about safety around a crane that was about to lift heavy infrastructure over the heads of workers. There was no safety representative on site, so they called in union officials. When they arrived, they legally accessed the workplace and asked to see the Safe Work Method Statement so they could verify it was being implemented correctly. The Federal Court accepted they

… had a continuing right to insist on its production to permit them to satisfy themselves of the advice they should give to the employees who had asked them to attend the worksite as to whether the operation they would be involved in moving the 16 tonne beams might justify them having a reasonable concern about an imminent risk to their safety.

The site managers refused to provide the paperwork, and instead called the police. When the police arrived, they negotiated a compromise — the managers would supply the paperwork if the union officials stopped recording the incident. The union agreed, but the managers reneged on the agreement and continued to withhold the paperwork.

A WorkSafe inspector was called. When he arrived, he immediately confronted the union officials about filming the dispute (the judge noted “perhaps that might not have been the most helpful start”) and — without even looking at the safety plan! — declared there was no immediate risk to safety. The police then removed the union officials from the site.

And here’s the thing. At all times, throughout the whole six hours of this farce, the union was validly exercising its health and safety rights — the leading official

… was entitled to stand his ground as he did. His doing so in the events in evidence, did not hinder or prevent either [WorkSafe] or the police in the exercise of their lawful duties. Moreover, albeit the consequence is speculative, his persistence may have prevented workplace injuries or death befalling member[s] of the Union.

In the words of the judge, “rather than lacking lawful entitlements [the union officials] were being hindered in their exercise of those legitimate industrial rights by the persons to whom they directed their respective intemperate remarks”. But those remarks had to be punished. So what kind of remarks are we talking about?

The judge found the WorkSafe inspector “jumped the gun when informing [the union officials] that there was no imminent risk to the workers’ safety. At that point of time [he] had yet to avail himself of the opportunity to inspect any of the materials (including the SMWS) which [they] were asking to see”. He “may have erred in his understanding of the law and having taken the course that he took (and I accept he did so)” — but the union official was punished for later “stating that it ‘exposes you for your incompetence… you’re a disgrace’.”

When the police, acting on the incompetent WorkSafe advice, removed the officials from the site (putting their members at risk), one of the union officials sarcastically said, “Who’s on the John Holland’s payroll boys? You as well? I thought it was only WorkSafe. Surely not in Australia?” The judge noted that this comment “may have involved an element of stress relief in recognition that the dangers he had feared might befall the workforce had been avoided” and “at a human level it would be an understandable reaction” — but he had to be punished for it. The judge noted this exchange was “more offensive” than any of the other remarks.

In weighing up the union officials’ conduct, the judge found “the balance, viewed in the round, having regard to the potential consequences he may have averted by the resolution he demonstrated is very much in his favour.” In other words, their impoliteness was trivial in the context of a serious safety risk, when their lawful exercise of their rights was hindered by the builder, WorkSafe, and the police.

And yet, as a result of this incident, the ABCC spent two years prosecuting the union, making a significant number of overblown accusations that were abandoned before the hearing. The union officials’ Fair Work permits will now be automatically cancelled because they expressed frustration when they spent 6 hours unlawfully prevented from exercising their rights under those permits.

One last thing: the site manager claimed that he did not want to hand over the documents because he did not like being filmed (this was not accepted by the judge as a “complete explanation” for his behaviour). The WorkSafe inspector also complained about being filmed. The judge rejected their objections, noting there was nothing to suggest the filming was done “for a purpose outside of that which was authorised by the OHS Act”. It seems likely that if the union had not kept filming throughout the incident, the ABCC would have pressed ahead with its original trumped up claims — and despite the video record of the employer’s 6 hour breach of the health and safety laws, the ABCC took their side.

Building workers’ safety is being put at risk by the tone police at the ABCC. It needs to be abolished.

17 November 2021

Jeff Sparrow: ”Instead of pushing for deep, structural change, [leftists from the 1980s on] increasingly focused on symbolic or cultural reforms, centred particularly on places like university campuses. Though many of the demands associated with delegated politics were entirely valid, the new emphasis had profound consequences — and nowhere more so than in relation to climate change. Global warming is, after all, quintessentially material: a process resulting from the peculiar relationship capitalism mandates between humanity and nature. Yet the new propensity for activists to see politics primarily in terms of culture enabled corporations to shift the focus away from production and into the symbolic realm. … Abandoning economics to the free market right, progressives sought to inspire change either through individual examples (recycling, bicycle riding, etc) or symbolic events such as Earth Hour. Politically, environmentalism often manifested in terms of belief rather than action. With conservatives pandering to climate scepticism, liberals voted for candidates who promised they ‘accepted the science’. Yet, on their own, such statements of faith changed nothing. … Atmospheric carbon does not care about culture war. Neither should we. Global warming exacerbates every kind of inequality, disproportionately affecting the poorest and most oppressed people on the planet. In that way, it creates a tremendous potential constituency for direct politics, for a mass, participatory campaign to fundamentally reshape how humans relate to nature — and to each other. But to seize the opportunity, progressives need a quite different orientation. If we keep fighting in the realm of symbolism, our last, best chance to save the planet will slip through our fingers, too.”

Jeff’s new book, Crimes Against Nature: Capitalism and Global Heating, is worth reading.

10 November 2021

Jason Parry on Sci-Hub, the Napster of academic papers: “Given the example of Sci-Hub, the easy logistics of internet publication, and the funding structure of academic research, it seems clear that in the absence of the academic publishing industry, scholarship would be more widely available, not less. If the academic publishing industry did not exist, scientists could still do their research—in fact, it would be easier to do so as more people would have access to scholarly literature. The peer-review process could still function normally—though there are good reasons to change that as well. And the resulting papers could simply be posted in a place where anyone could read them. … When several record companies sued Napster in 2001, they could make the legitimate case that the economic well-being of the musicians, producers, and all the people who were needed to distribute recorded music was at stake. No such parallel exists in the case of Sci-Hub. Scientists are not paid by the publishers. Peer reviewers are not paid by the publishers. Distribution itself, as proven by Sci-Hub and its more law-abiding brother arXiv, is cheap enough to be provided to the public for free. It’s not surprising, then, that polls reveal that scientists overwhelmingly support Sci-Hub. … For the academic publishers, it is about extracting rents rather than enforcing ideological or theological orthodoxy. But making scientific journals prohibitively expensive unfortunately achieves the same effect as censoring them.”

Former NSW and Victorian judges Anthony Whealy and Stephen Charles [$]: “It is regrettable that The Australian Financial Review’s editorial — Voters, not ICAC, should judge the business of politics — of November 3 should have taken a narrow view of the need for proper integrity oversight of the political process in NSW. This is a grotesque view. Voters are in no position to investigate at close quarters the minutiae of events surrounding any particular grant decision. Consider the detail of the Auditor-General’s report into the Sport Rorts scandal. Consider also the months of inquiry, the call for and collection of documents, the interviewing of witnesses, the compulsory examinations in connection with the Maguire/Berejiklian investigation. The material uncovered in both these matters, one federal and one state, emphasises how voters, left solely to their own prejudices, know little of the detailed circumstances involving ‘the business of politics’. It is laughable to suggest that voters, in the absence of independent scrutiny, are in any position to judge the lawfulness, probity and rectitude of government decisions.” It’s true that voters should judge the business of politics — but they need a range of institutions, including well-resourced independent anti-corruption commissions, to provide the information that allows them to cast an informed vote.

5 November 2021

Dr Joanna Howe: “Farm workers in Australia have toiled for as little as $1 an hour. Or they can slave away all day filling a bucket with oranges for $5 an hour, so it amounts to just $40 in wages. Until now. On Thursday, in a landmark decision, the Fair Work Commission has ruled that farm workers can no longer be paid below the hourly minimum wage through the use of piece rates. This is a foundational step to ending the endemic exploitation of migrant farmworkers. … In my research we encountered workers effectively being paid $1 an hour on piece rates and more generally we found piece-rate workers earned less than $15 an hour, more than $5 below the legal minimum hourly rate for a 38-hour week. This was often because workers bore the cost for things that were beyond their control. For example, if the weather was bad and the fruit was damaged, or it was the end of the season and there was less fruit on the trees. Or it was often the case that workers couldn’t get up to the unrealistically high picking speed demanded by the farmer. … This decision will force some growers to face an uncomfortable reality. Some will have to change their business model and raise their rates to become compliant if they want to stay in business. Others will calculate the risk of being detected and decide to ignore this decision and keep paying workers well below the minimum wage. So although this decision is a step in the right direction, it needs to be accompanied by further reform to ensure the horticulture industry is not built upon a norm of non-compliance with labour standards.”

Related [$]: “Australia’s already-stalled seasonal-worker program is under challenge from a proposed class action by Pacific Island workers against labour hire companies accused of exploitation and massive wage theft… The Australian has sighted dozens of pay slips showing some South Sea islanders brought to Australia as farm workers on the promise of wages of $900 a week are left with less than $300 a week to pay for basic items such as food after excessive deductions.”