08 December 2015
by Jeff Sparrow

Black bans and blackmail

There’s something dodgy going on in the construction industry but it’s not trade unionism.

The arrests of CFMEU officials John Setka and Shaun Reardon feature on the front page of every newspaper – as, of course, was always intended.

The two men are public figures, and scarcely difficult to find. Yet police pulled Setka over in his car, arresting him in front of his infant children. They raided Shaun Reardon in his house near Geelong, driving him to Melbourne to be charged with blackmail.

‘Blackmail’ comes with connotations of sly underhandedness. It’s the crime of the door-peeper and the mail-steamer, a nasty offence in which private weakness is exploited for personal gain.

Except that’s not what Setka and Reardon have done.

The Australian explains:

Peter Head, general manager at Boral Concrete, Southern Region, and company official Paul Dalton testified at the royal commission that Mr Setka and Mr Reardon warned at a meeting in 2013 that the CFMEU would continue to escalate a black ban against the company if it did not block supplies to Grocon.

‘By making that demand, Mr Setka may have committed the criminal offence of blackmail,’ Mr Heydon, the royal commissioner, said in his interim report in ­December last year. ‘Mr Reardon also may have committed the offence of blackmail or may have aided and abetted Mr Setka and may be liable as an accessory.’

In other words, police arrested Setka and Reardon because of the CFMEU’s campaign against Grocon. The two weren’t shaking down individuals for cash. They didn’t have their fingers in the till. They didn’t stand to benefit personally at all. They were enforcing a union black ban in the context of a long-running industrial dispute: it’s because of that they face up to fifteen years in jail.

To put the penalty in perspective, note that in 2013 a wall collapsed on a Grocon construction site, killing three people on Swanston Street. Grocon accepted responsibility – and paid a $250 000 fine.

The comparison is not made at random. The Grocon dispute is often portrayed as a power struggle, nothing more – a contest over influence between a major firm and a major union. It’s invariably discussed by political pundits exclusively in terms of its consequences for the political fortunes of Bill Shorten, Daniel Andrews or the ALP more generally.

The commentariat rarely mentions the CFMEU’s central demand: union-appointed OH&S representatives to monitor safety on site.

Why might that be important?

Because 185 people died in workplace accidents last year, because construction remains one of the most dangerous industries in the nation, and because the average fine a company receives for a fatal incident stands at about $100 000.

That’s right: if you’re a boss whose shoddy practices leave an employee dead, the cops are not going to pull over your car or come knocking on your doorstep. Criminal prosecutions for industrial negligence are vanishingly rare; the civil penalties imposed so light as to be almost meaningless (does a billion-dollar company even blink at a hundred grand?). Yet in an industry where time equals money, there are obvious material incentives for employers to rush jobs, to take shortcuts, and to skimp on safeguards, particularly in the context of the governments’ drive to reduce ‘red tape’ and restrictions.

That’s why having workers’ representatives monitoring safety matters. Last month, when a concrete slab crushed two men to death on an East Perth worksite, it transpired that the CFMEU had been refused entry to the site sixteen times. As the national security crusaders tell us: if you’re doing nothing wrong, then you’ve got nothing to hide.

Yet it’s one rule for the employers and it’s another for everyone else.

In August, Dyson Heydon ruled himself eligible to continue running the Trade Union Royal Commission (and thereby receiving an annual salary of close to a million dollars), despite having signed up to speak at a Liberal Party fundraiser. His Honour explained why he’d found in his own favour: he was, he declared, incapable of reading emails unless someone had printed them out and thus shouldn’t be held responsible for his actions. This, mind you, in the context of an inquiry that has regularly browbeaten witnesses about their memories of documents they may or may not have signed decades ago.

Since then, we’ve learned that one of the policemen working for the commission had been speaking at forums organised by the Master Builders Association (the professional body for construction bosses) where, according to the CFMEU, he explained to businessmen that ‘CFMEU officials were all criminals and urged them to sign enterprise agreements with the MBA’.

Yesterday’s decision by police to stage the arrests of Setka and Reardon as if the men were dangerous fugitives comes after the AFP took the bomb squad to its raid (which has now been declared illegal) on the CFMEU’s Canberra headquarters, solely to prevent union officials from observing its search.

Bill Shorten was quite right to label the royal commission a ‘politically motivated’ stunt. For Shorten, however, the politics pertain primarily to the conservative effort to link the Labor Party with union militancy. That’s why he’s issued a new policy promising more power for authorities to crack down on unions: essentially, endorsing all the right-wing talking points.

The real issues are far more fundamental.

If the CFMEU can’t enforce workplace safety, more workers will die.

Furthermore, since the inception of combinations in the eighteenth century, trade unions have fought to prevent the criminalisation of their basic function: that is, the facilitation of collective action by employees against employers. Increasingly, tactics that would have been taken for granted a generation ago – picket lines, secondary boycotts, etc. – are being rendered illegal, while unionists who employ such methods are punished as criminals.

That’s why this case matters. The bosses have always called trade unionism ‘blackmail’. If we allow them to set the definitions, the ramifications will be enormous.