Address to Safety Institute of Australia National Safety Convention18 September 2015
Safety Institute of Australia National Safety Convention
Melbourne Convention and Exhibition Centre
Thursday, 17 September 2015
Safety in the building industry: a regulator’s perspective
[check against delivery]
Director, Fair Work Building & Construction
Good afternoon, ladies and gentlemen. Thank you for giving me the opportunity to speak here today. Let me say at the outset, I appreciate you might be wondering what I am doing speaking at a safety conference when my agency, Fair Work Building & Construction, is not responsible for safety. It is a valid question. That is not to say that my staff and I do not care about safety. On the contrary, there is nothing more important on Australia’s building and construction sites than people and their safety.
FWBC, as my agency is more commonly known, investigates, and in some cases prosecutes, allegations of coercion, discrimination, freedom of association, unlawful industrial action, and right of entry breaches. Unfortunately, it is the last of these unlawful activities that sees FWBC have a rather unfortunate connection with safety in the building industry.
Union officials who hold a valid federal right of entry permit, are allowed to enter construction sites under certain conditions. In particular, these requirements include obeying the safety rules on that particular site. These instructions include fundamental obligations such as wearing appropriate protective gear and staying out of exclusion zones. Sounds fairly simply? Apparently, it is not. I regret to report, that instances of union officials disobeying laws in respect of safety, are on the rise. And, ladies and gentlemen, I am also disappointed to inform you, that situations where union officials use questionable safety claims to gain entry to a site, only to pursue an industrial agenda, are frighteningly common. And again, this is where FWBC has to step in.
FWBC’s vision is ambitious: “that all Australian building and construction workplaces are productive and harmonious”. Our mission is “to ensure that the Rule of Law prevails in the Australian building and construction industry”.
In 2014, there were 29 worker fatalities in the construction industry. You will get no argument from me that this was 29 too many. In particular, it is worth noting, that in 2013, the construction industry had the sixth highest fatality rate per 100,000 workers. It was agriculture, forestry and fishing, which had the highest fatality rate. According to a Safe Work Australia report released this year, there was a 36 per cent decrease in the rate of fatalities in the construction industry from 2003 to 2014. But this would be little comfort to those who have lost loved ones, and of course we should all be aiming for no fatalities.
To my mind, safety is a matter for all of us. What concerns me, is the implied assertion, that to profess an interest in promoting safety, provides a justification to break the law. In particular, the Construction, Forestry, Mining and Energy Union (CFMEU) which is the main trade union in construction, has a proven track record of using bogus safety issues, to get on to a site, in order to pursue an industrial program. You might be wondering why I have singled out the CFMEU. Well, FWBC currently has 52 cases before the courts around the country. The CFMEU is a respondent in 46 of these cases. Of those 46 cases, 7 involve CFMEU officials allegedly using questionable safety claims to get on site.
Let me give you an example of what I am referring to. In an FWBC case that was determined by the court last year, 3 CFMEU organisers entered a site, purportedly to address safety issues. When one organiser was reminded he needed to wear personal protective clothing which he was required to wear, he replied: “I don’t have to answer to you, you f***ing little grub”. I remain baffled as to why another organiser needed a portable EFTPOS machine to address safety concerns! The Judge commented in that case:
“Conduct that jeopardises safety is to be discouraged, particularly by those who profess to police it.”
“Plainly, these experienced industrial organisers were more interested in grandstanding by engaging in provocative behaviour in the presence of workers on the site, notwithstanding their presence onsite purportedly being in respect of safety issues. Undoubtedly their behaviour was directed more to recruitment and membership retention than any other object”
Just last week, the Federal Court fined the CFMEU and 2 officials a quarter of a million dollars ($272,500) for “abusive and misleading conduct”. These officers were found to have broken right of entry laws at a construction site at Sydney Airport. The project manager asked the two CFMEU officials for their right of entry permits. “Can I at least get your names?” he asked. “Steve Irwin” replied one. The project manager queried, “What as in the crocodile hunter?” “Yeah, that’s it” responded the official.
Once on site, these CFMEU officers directed workers to stop a concrete pour, which they had no authority to do. The court rejected the union officials’ submissions that they were on the site for safety reasons. The Judge stated in determining penalties, that it was important to consider “the fact that both entered the site knowing they should have waited for personal protective equipment to have been provided and to be escorted on site.”
Not only is it common for CFMEU officials to give grief to site managers, they have also been known to target FWBC investigators. So blatant is their disregard for the law and for others, one incident was captured on video. As a result, a Melbourne CFMEU official, was recently fined $5000 and had his right of entry permit suspended for 19 months after he tried to physically intimidate an FWBC investigator who was going about his job. It included the official saying “You’re just about having a heart attack. You’re sh*tting yellow, you piece of sh*t. Go f***…brush your teeth next time, you piece of sh*t, alright? You f***in’ coward, I’d f***in’ take you to school, you f***in’ piece of sh*t”.
Two weeks ago, as a result of Trade Union Royal Commission inquiries, a CFMEU official was given a notice to appear in court in relation to his alleged behaviour towards two of our investigators. The official allegedly intimidated the investigators who were going about their work on a Sunshine Coast construction site.
I am pleased that Unions WA Secretary Meredith Hammat has commented that unions are opposed to bullying of any kind in the workplace. I agree wholeheartedly with Meredith that such behaviour is “just not on”. I am proud to say we have a large percentage of women investigators. Unfortunately, however, they are often targeted by union officials. One official spat at a female investigator, and in another incident, an official called a woman investigator an “f***ing slut” over a loud hailer. Another female investigator was subject to intense attacks which resulted in us having to install security at her home. Posters with her name and home phone number were put up around building sites and she subsequently received a late night phone call from a man threatening to gang rape her. I can tell you, she certainly did not feel very safe.
A BROADER PERSPECTIVE
All that my agency asks is that the CFMEU, like everyone else, performs its job within the law. If these workplace laws were to prohibit the CFMEU from protecting workers then I could comprehend the repeated law-breaking. But they do not. The CFMEU often accuses my agency of taking vexatious actions for minor breaches of law. In fact, the CFMEU seems intent on trivialising its law breaking. However, these breaches are neither isolated or minor, as evidenced by the penalties handed down by the courts. Since 2005, in actions brought by FWBC and its predecessor agencies, the CFMEU and its officials have been fined more than $6.2 million.
My agency is not alone in believing that certain unions are not always doing the right thing when it comes to safety. An ACT builder recently gave evidence to the Trade Union Royal Commission. He said in a sworn statement, “The CFMEU were thugs and not worried about safety. They just used safety as a method of blackmailing business.”
Two months ago, the Trade Union Royal Commission heard a WorkSafe inspector stopped a concrete pour on a Canberra building site against his own judgement after “intimidating behaviour and actions” by CFMEU officials. The WorkSafe inspector told the Royal Commission: “In my view, there were minor safety issues which on their own were not enough to stop the pour.” “I then had a conversation with [CFMEU ACT secretary Dean Hall] and told him words to the effect: ‘I won’t be stopping the pour as it has been signed off by an engineer as being ready to pour’. “Mr Hall did not seem happy with this. He got up close into my personal space and shouted aggressively at me, yelling words to the effect: ‘If you don’t f***ing close the site and someone dies, you’ll go to jail’. He was pointing at me and just jabbing sort of but he didn’t make contact.”
The WorkSafe inspector also told the Royal Commission: “I found the situation intimidating because there were four or five angry CFMEU officials standing around me, some of whom are very large men, pressuring me to shut the site down.” “Had I not been yelled at, then I would have allowed the pour to continue.”
I do not for a moment deny that there are safety issues which require investigation on Australian construction sites. And I see the potential, for the CFMEU to play an important role in addressing these problems. However, it must do so within the law. Using bogus safety claims to obtain entry to a site for non-safety purposes, or to further industrial agendas, creates a dangerous situation for future incidents where a genuine safety issue might exist.
Nobody would disagree, that when there are genuine imminent risks to people’s safety, work in the affected area should cease immediately. It is important to understand that under relevant legislation, it has never been considered industrial action for an employee to stop work when they hold a genuine concern for their safety.
For example, some 600 workers downed tools and walked off the new Royal Adelaide Hospital construction site. Because it was clear there were serious safety concerns at the site, we did not pursue the matter. I want workers to know, that where their safety is in danger, they can stop work immediately, and they will not face repercussions from my agency.
Sadly though, every time a union official uses a bogus safety claim to get on site, only to push an industrial agenda, it undermines the very system established to protect workers when a legitimate safety issue occurs. Simply put, I am increasingly fearful that this malpractice will become a case of “the boy who cried wolf”.
Allow me to put a hypothetical scenario to you. Imagine you are a worker on a building site. You have turned up to earn a fair day’s wage, for a fair day’s work. Then, a union official comes on site, and tells you to down tools. You ask why, and the only response you get is “safety”. “Well”, you think, “fair enough”. “If there’s a safety issue, then I shouldn’t be working”. So, you sit in the sheds. After some time, it becomes apparent, that there may not be an imminent risk to safety. Rather, another issue is brewing – perhaps an industrial dispute of some kind between the union and the head contractor. You return to work, but your pay has been docked. The next day, back at work, another union official comes on site, and tells you to down tools because there is a serious safety issue. “Stuff that”, you think. “That’s what the union bloke said yesterday, and there was no safety issue, and I’m now out of pocket four hours pay”. So you keep on working.
Ladies and gentlemen, what if, on that second occasion, there really was a serious safety issue, that put that worker and others in danger of electrocution or other fatal harm? Fortunately, this situation is a hypothetical. However, I have increasingly grave concerns that it will become a reality one day soon.
Ladies and gentlemen my conclusion is simple. Union officials are, and should be, entitled to enter construction sites to speak to workers and address potential problems, especially about safety. The law explicitly allows for this to occur. But when they do so, they must act within the law, especially in respect of site safety rules, which are designed to protect not just them, but the workers as well.
Thank you.Speech - Safety in the building industry - a regulator’s perspective.pdf