The Ark Tribe case is scheduled to resume in the Criminal Division of the South Australian Magistrates’ Court on July 20. Tribe, a rigger in his late forties, is accused of failing to attend an Australian Building and Construction Commissioner (ABCC) inquiry in 2008. If convicted, he could up to six months imprisonment.

The ABCC, which was set up by the Howard government, has the power to compel building industry participants to attend its inquiries/examinations and answer any questions put to them under oath. Those summonsed are assumed to have information about breaches of workplace laws. Breaches include the unauthorised entry of union officials on building sites and strikes (unless related to health and safety concerns).

In its latest report about the exercise of its compliance powers, the ABCC stresses that it exercises those powers only as a last resort. The report covers the period from the commission’s inception in October, 2005 until March of this year. During those four-and-a-half years the ABCC summonsed 197 people to examinations around Australia.  Most took place in Victoria (114) and Western Australia (50). Those compelled to appear included building industry bosses and union officials, although two-thirds of those examined were employees.

After one inquiry an industry manager is reported to have been dubbed “Lassie” by a union official. The moniker has provoked much puzzlement. Although informers are widely referred to as “dogs” in Australia, Lassie is also the well-remembered name of the heroic, beloved canine film and TV star.

The ABCC’s compliance report notes that:

“Often witnesses do not want to be seen to be co-operating with the ABCC through fear of possible repercussions.”

Yet the report immediately goes on to say:

“In many instances witnesses prefer that they be subject to the compliance powers before they will provide information.  The compliance powers work as a safeguard for these witnesses in that they are required by law to provide information, with significant penalties for refusal to co-operate, rather than being seen to have provided assistance voluntarily.”

In other words, the ABCC seems confident that its compliance powers safeguard those forced during an examination to inform on workmates, union officials or bosses.  It’s a confidence that seems at odds with official claims of violence and stand-over tactics in the construction industry.

The compliance report also advises that:

“Another safeguard for witnesses is that any evidence they give (during an ABCC inquiry) cannot be used against them in future (court) proceedings, provided the evidence is truthful.  However, due to this protection, the compliance powers are generally not used on persons who are suspected to have contravened the law.”

Ark Tribe, meanwhile, has said that he failed to heed an ABCC summons, not because of fear of any repercussions, but on principle, in protest against what he perceives as the erosion of workers’ rights. He is a member of the CFMEU.

A spokeswoman for the ABCC has declined to comment on the background to Tribe’s imminent trial. It’s understood, though, that he was summonsed to an ABCC inquiry following an industrial dispute in 2008 at his then workplace, a Flinders University construction site. He is believed to have been one of 30 workers who went on strike because of health and safety issues.

Later, the ABCC instituted proceedings against the CFMEU and its official, Justin Feenan, who called the allegedly illegal strike. But on April 13 this year, the parties advised the South Australian Division of the Federal Court that they had reached an agreement. The statement they put before the court, presumably after mediation, included an admission by the union that the strike had gone ahead even though there was no imminent threat to the health and safety of workers. The CFMEU and Feenan also undertook to pay the court a total of $20,000 in penalties. The court reserved its decision on the same day.  No further hearing has yet been scheduled.

The case against Tribe, however, is about to begin. Although he is believed to have been only one of 30 workers involved in the strike at the university, what remains a mystery is whether he was the only one of those workers subsequently summonsed to an ABCC examination. According to the commission’s latest compliance report, however, only three ABCC examinations have so far been undertaken in South Australia.

The ABCC notes in that report that failure to attend a commission inquiry is considered a serious criminal offence.  The commission reported Tribe’s non-appearance to the Federal Director of Public Prosecutions. Tribe is believed to be only the second person charged with the offence. A previous, unrelated charge, involving union official, Noel Washington, was dismissed in the Federal Court in Victoria in 2008.

Between October, 2005 and June of this year the ABCC’s investigations have led to 106 prosecutions … 67 of these prosecutions have been finalised … 52 succeeded, eight failed and seven were dismissed …  while 39 matters are still before the courts.

The penalties so far imposed as a result of this legal action have totalled $2,114,900. Most of these fines have been imposed, with costs, on the CFMEU. Details about all the ABCC’s finalised and pending cases can be accessed on www.abcc.gov.au

Since the introduction of Enterprise Bargaining Agreements in the early 1990s, strikes and other types of industrial action have been prohibited in Australian workplaces during the duration of an agreement, except when health and safety is at issue. Freedom of association is now guaranteed by law. In other words, you don’t have to join a union if you don’t want to.  There are heavy penalties for coercion. Physical coercion is, of course, a police matter.

On the other hand, unionists, especially those who work on construction sites and in other dangerous workplaces, point out that non-union labour, is often untrained and inexperienced and consequently a danger to other workers. The ceiling insulation batts debacle is one of the most recent example of the ramifications of contractors employing young casuals, some of whom, tragically, were inexperienced to the point of stapling live wires.

Increasingly, Enterprise Bargaining Agreements are signed by workers without any union advice. Recent Australian Bureau of Statistics figures reveal that currently only about 20% of Australia’s 11 million workers are union members.  The CFMEU is among the unions arguing that the consequence for unrepresented employees is lower wages, fewer benefits, unsafe and inferior working conditions and longer hours.

General secretary of the International Trade Union Confederation and  former ACTU president Sharan Burrow recently noted, though, that the pressure on all Australian workers to do more for less has increased because of the global financial crisis. She estimated that Australians anxious to keep their jobs are putting in a total of about 2 billion hours of unpaid overtime a year. Family life suffers as a consequence.

Ark Tribe’s imminent trial may well prompt renewed  debate about the erosion of union power and the rights of workers. Tribe and his family have now lived for more than two years under the stress of several preliminary hearings and the possibility that he might end up in jail. CFMEU national president Dave Noonan has warned, however, that  “if Ark goes in, we go out”.

During an address ABCC commissioner John Lloyd gave at the Ai Group National Construction Conference in Melbourne in May, he announced that the ABCC’s job is by no means done. He gave a long list of instances of alleged ongoing industrial lawlessness. The full text of his speech can be viewed by on www.abcc.gov.au (media statements).  Lloyd is due to step down in September. Although Julia Gillard is committed to replacing the ABCC with a Fair Work Inspectorate, unions have complained that the proposed inspectorate will retain the commission’s compliance powers.