This article originally appeared on Working Life
TONY Abbott’s new Royal Commission into unions is following a script that will be very familiar to anyone who paid attention to the Cole Royal Commission a dozen years ago. And once again, it looks like dodgy employers will be let off the hook, writes JIM MARR, author of First The Verdict.
SUSPECT employers who poured hundreds of thousands of dollars into Liberal Party coffers won’t be called to account by Tony Abbott’s corruption Royal Commission.
The Prime Minister’s terms of reference, released in February, make it clear that Royal Commissioner Dyson Heydon will not be asked to examine businesses that have left workers and small businesses high and dry after tipping six figure sums into Liberal Party accounts.
This will be a relief to operators of Queensland-based Walton Construction who paid $430,000, as “rent”, to an LNP-linked trust before leaving sub-contractors millions of dollars out of pocket when it collapsed, last year.
And to those behind Steve Nolan Constructions which, Australian Electoral Commission records show, tipped at least $200,000 into NSW and federal LNP accounts in the two years before it went belly-up, owing workers and contractors more than $30 million.
As Abbott announced his latest taxpayer-funded Royal Commission, hundreds of former Steve Nolan employees picketed two Sydney sites in a bid to retrieve some of their money.
Other employers Abbott appears to have deliberately written out of his Royal Commission script include Leighton Holdings, mired in allegations of bribery and corruption on a grand scale, and Australian Water Holdings (AWH) the outfit accused of fleecing a publicly-owned utility while delivering hundreds of thousands of dollars into Liberal Party accounts.
AWH, of course, was also the company that paid Cabinet Minister and leading Liberal Party fundraiser Arthur Sinodinis a cool $200,000 for less than 50 hours’ work.
Terms of reference explicitly target unions
In an interview with ABC Radio, Abbott insisted the Royal Commission, that opens in Sydney this week, would be a fair dinkum investigation of organisational corruption and that unions would not be unfairly targeted.
“This isn’t declaring war on anyone, it’s declaring war on wrongdoing,” the Prime Minister said. “It’s declaring that there are certain standards in our society and whether you’re a company official or a union official, you’ve got to obey the law.”
Speaking the same day, Attorney General George Brandis said any suggestion of corruption in the business community would be investigated by the royal commission.
These claims are hard to square with the fact that the government has named the inquiry the Royal Commission into Trade Union Corruption and Governance, and written terms of reference that order the investigation of five specific entities – The Australian Workers’ Union, the Construction, Forestry, Mining and Energy Union, the Communications Electrical and Plumbing Union, the Transport Workers’ Union and the Health Services Union.
There is simply no mention of businesses alleged to have gouged taxpayers or ripped off workers while topping up Liberal Party funds.
That Abbott’s Royal Commission will not shine light into those dark corners is unsurprising because the Prime Minister has form. His Cole Royal Commission into the Building and Construction Industry was a cynical political exercise.
Royal Commissions, by their nature, can be dodgy beasts.They carry all the trappings of the law but are not of the legal system. Spawned by the executive, their lasting attraction to politicians is that they get to write terms of reference that will determine the outcomes.
Australian Royal Commissions, in particular, are controversial because they have the power to trample basic legal protections and procedures. Hearsay, rumour and third party opinions are allowed and, often, relied on to shred reputations.
Counsel Assisting who lead all the evidence, are not bound by courtroom rules designed to ensure fair and balanced presentation.
The Cole Royal Commission took all these opportunities, and a few more, to deliver Abbott the political fix he wanted.
In 2002, the then-Workplace Relations Minister had a political problem. Construction unions were leading resistance to his government’s centrepiece Workplace Relations Act, largely through a successful pattern bargaining campaign.
The Cole Royal Commission into the Building and Construction Industry was a cynical political exercise.
Abbott was a vehement opponent of pattern bargaining which is based on the concept that people doing the same work, in the same industry, should get, basically, the same wages.
His difficulty was that pattern bargaining was perfectly legal.
Abbott jumped on allegations of bribery and corruption to order a report from his Employment Advocate, Jonathan Hamberger, who delivered 11 pages, light on fact and heavy on rumour. Hamberger garnished those ingredients by warning he could not support his findings with hard evidence.
But that note of caution was never going to deter Abbott from launching the most expensive Royal Commission in Australian history.
He assured voters his Cole Royal Commission would be an even-handed investigation of bribery, corruption and standover tactics across a blighted industry.
His commission employed 135 fulltime staff, many from the National Crime Authority and the Australian Federal Police. They served sweeping discovery orders, bugged phones and forced banks to hand over client records.
By the time the Sydney hearings opened on June 3, 2002, investigators had gathered 110 witness statements from across NSW.
A handful offered general overviews. All the rest alleged illegal or inappropriate dealings by trade unionists.
Commission investigators and highly-paid Counsel Assisting did not tender a single witness statement alleging wrongdoing by any employer in NSW, except where they claimed a business had been too co-operative with a union.
Based on this, Cole made 392 findings of unlawful conduct, more than 360 of them against union members. The first three, from his NSW hearings, set the tone.
Unlawful findings one and two, held that CFMEU organisers had failed to notify the occupier of a premise of their presence “as soon as was reasonably practicable”.
Cole’s third unlawful finding was that a CFMEU official had stopped work on a building site and held discussions “during work hours outside of meal-time, or other break times”.
These findings had absolutely nothing to do with the allegations of hard core criminality Abbott had used as the pretext for his Royal Commission.
Nor did they reflect untested “evidence” that had seen newspapers and electronic media full of unsubstantiated anti-union allegations, largely from self-confessed rorters, for 10 solid months.
$60 million later, not a single criminal charge
All Abbot’s men, the coercive powers and $60 million taxpayer dollars he had given them, couldn’t uncover enough evidence to sustain a single criminal charge against any Australian trade unionist.
Instead, Cole called for “structural reform” recommending, as his first priority, that “pattern bargaining in this industry should be prohibited by statute”.
He went on to make 212 recommendations designed to strip building workers of a say in their industry.
As the result of Cole’s findings, the federal government outlawed pattern bargaining, severely restricted the ability of workers to campaign around wages and safety, and established a Building Industry Taskforce with the power to force union members to answer questions on pain of prison.
Fast forward to 2014 and the same Tony Abbott is a Prime Minister with a political problem.
He has promised voters WorkChoices is “dead, buried and cremated” but key colleagues, and backers with deep pockets, want significant elements of the policy resurrected.
Instead of making a call, Abbott has flicked the technical fix off to a Productivity Commission his government has already started to stack with former political staffers.
As to a political fix? Well, a long-running inquiry that might weaken trade unions and dirty-up political opponents would just about be the dog’s bollocks.