And this too is clear: for all of Anthony Albanese’s bluster, Labor remains every bit as unwilling to deal with that lawlessness as it has always been. Rather, time and again, Labor’s response to union violence has been the same, running through a cycle so repeatedly as to make one believe in the myth of the eternal return.
The pattern underpinning that response is simplicity itself. Like the mafia bosses the sociologist Diego Gambetta studied, who punished crooks when their violence was “dishonourable” — for example, because they attacked women — so Labor tries to discipline offenders only once their behaviour threatens to bring the entire system into disrepute.
And even then it invariably makes the response as narrow as possible, leaving the root causes untouched and ensuring the underlying problems persist.
To say that is not to ignore Bob Hawke’s move against Norm Gallagher and the Builders Labourers Federation. But far from being an exception to the rule, Hawke’s actions remain its most telling demonstration.
In effect, the building industry’s descent into lawlessness was hardly a recent phenomenon when the Hawke government finally acted to deregister the BLF. Nor was the BLF alone in making extortion, blackmail and corruption an integral part of its standard operating procedures.
On the contrary, the mayhem in the building trades began in the late 1960s as a boom in the construction of high-rise office towers led to the introduction of building techniques heavily dependent on lofty cranes and on the tightly sequenced work of crane drivers, “dogmen” (who connected and disconnected loads and directed crane-drivers as to where loads were to be deposited) and riggers.
The enormous cost of those projects, and the steep debt burdens incurred by the developers, meant any delays in their completion could inflict crippling losses. As a result, developers were extremely vulnerable to hit-and-run industrial tactics, creating an opportunity that was promptly seized by the BLF and its allies in the Federated Engine Drivers.
As well as breaking into construction sites and destroying property, their co-ordinated campaigns involved disrupting crane lifts and cancelling concrete pours moments before they were to occur, wasting costly materials and causing lengthy delays.
At the same time, the BLF’s self-proclaimed “vigilante” squads proved more than willing to assault foremen, security guards and “scabs”, while warning developers that any attempt to prosecute the culprits would be met with savage retaliation.
That set an example other unions, in industries from meatpacking to mining, eagerly imitated. And the arbitration system, instead of curtailing those abuses, encouraged them.
The industrial courts did have penal powers under which unions could be fined and unionists pursued for contempt; however, particularly after the 1969 Victorian tramways strike, those already ineffectual sanctions were a spent force. As for deregistration, it was a complex process even the worst unions could easily avoid.
For example, by the 70s the Ship Painters and Dockers were little more than a criminal syndicate; but they eluded deregistration by being careful to breach only laws (such as those against murder and malicious wounding) that were not administered by the industrial courts.
Rather, the industrial relations system’s main effect was to entrench unions’ monopoly status. No matter how rotten a union might be today, employers knew they had to live with it tomorrow. Capitulation and illicit side-deals were therefore the dominant strategy, allowing unions to combine the facade of industrial legalism with standover tactics when the time came to demand more.
As the violence spread, the Whitlam government stood impassively by. But the Fraser government did react, including by creating an Industrial Relations Bureau to investigate allegations of unlawful behaviour. And it established a royal commission into the activities of the BLF, as well as one to examine the situation on the docks.
Hawke vehemently opposed Fraser’s reforms, vowing to reverse them on coming to office — which is exactly what his government did. In their place, the Labor government entered into a “good behaviour” agreement with the BLF whose core provisions the Federal Court described as “meaningless, unenforceable and unacceptable”.
Of course, the BLF promptly exploited the leeway Hawke had given it, escalating bitter demarcation disputes with the Australian Workers Union and the ironworkers’ union.
It also sought to consolidate its position by strengthening the socialist Left’s influence over Victorian Labor politics.
As the tensions that caused mounted, Hawke and Victorian premier John Cain came under intense pressure from within their own ranks to bring Gallagher to heel. But they did not respond by overhauling the governance of Australia’s unions, as the 1982 Winneke royal commission into the BLF and the 1984 Costigan royal commission into the Ship Painters and Dockers Union strongly recommended.
Instead, they passed legislation narrowly targeted at the BLF, through the Victorian BLF De-recognition Bill of July 1985 and the Building Industry Bill introduced into the federal parliament a month later.
The message that sent could not have been clearer: it was only when union lawlessness got in Labor’s way that it would be sanctioned. Therefore, even with Gallagher off the scene, and the BLF’s members safely delivered to unions controlled by Hawke’s factional allies, the old tactics promptly re-emerged.
As early as 1992, the Royal Commission into Productivity in the Building Industry in NSW, led by Roger Gyles, found that practices ranging from “physical violence and a threat of physical violence at one end to petty pilfering at the other” were once again widespread.
Its findings were corroborated by the 1992-94 Victorian parliamentary inquiry into the building and construction industry.
However, with the building unions’ Tom McDonald claiming those inquiries were a “mere witch-hunt”, the Keating government did nothing to stop the BLF’s former hardmen from returning to positions of power.
Soon enough, all the worst features of the Gallagher days were on full display. As a result, the Royal Commission into the Building and Construction Industry led by Terence Cole in 2001, found damning evidence of the “disregard by unions for the truth in furthering industrial purposes”, the fostering of disputes merely “for the purpose of furthering a union’s desire for power and membership”, and the building unions’ “disregard for industrial laws”.
Responding to Cole’s findings, the Howard government established the Australian Building and Construction Commission. But ACTU secretary Greg Combet, repeating the old mantra, dismissed the Cole commission as a “witch-hunt”, while Craig Emerson, Labor’s IR spokesman, described the ABCC as “not a watchdog but an attack dog” that was “programmed” to “inflame disputes”.
In reality, the ABCC brought a breath of fresh air to the building industry. At the same time, the Howard government’s Work Choices legislation played a crucial role in ensuring the return to full employment did not lead to the industrial chaos it had always provoked in the past.
Yet those benefits did nothing to make the Howard government’s legislation any more acceptable to Labor and the unions, whose “Your Rights at Work” campaign prepared the ground for Work Choices’ repeal.
During the 2007 election campaign, Julia Gillard repeatedly promised that the new industrial relations system Labor intended to introduce would be enforced by an “umpire with teeth”. However, the Fair Work Act, which replaced Work Choices, did not simply turn back the clock by abolishing the ABCC; it also modified the definitions of lawless behaviour in the industrial relations laws to make misconduct extremely difficult to prove, while dramatically reducing the ability of the workplace regulator to evidence illegal dealings.
The effect was to expand the scope for union malpractice, which, even if uncovered, could only be punished through trivially small fines. Given the incentives that created, the ink was scarcely dry on Gillard’s legislation before the CFMEU exploited it to the hilt.
By 2014, when Dyson Heydon’s Royal Commission into Trade Union Governance and Corruption was established, flagrant abuse was yet again the order of the day. It concluded the industrial laws gave unions a “privileged position” without “proper legislative measures to safeguard the interests of those affected by those privileges and the general public interest”.
That power without accountability would lead to every form of misconduct should have been obvious. And it should also have been obvious that the gangrene would spread as opportunities for extortion attracted into the unions leaders who were violent and venal, and whose comparative advantage lay in extracting for themselves and their associates the rents the IR system created.
The result, as Federal Court judge Geoffrey Flick found in 2017, was that the CFMEU “repeatedly sought to place itself above the law”, while its officials showed “total contempt” for the constraints the law imposed.
But none of that troubled Labor, which, since losing office in 2013, has denounced, and sought to prevent, each and every attempt at cleaning up the mess it left behind.
Now, however, even the ALP has had to recognise the damage union lawlessness is causing to the labour movement’s standing. Yet rather than tackle the root causes of the problem, it has — repeating its longstanding pattern — focused on personalities, as if changing the cast would change the script.
That hasn’t worked before, and it won’t work now. If Labor can’t understand that, it deserves to lose, and then lose again.
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