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.