No Justice for “Removed Persons”

According to the legislation, placing the CFMEU under administration was about ensuring that “the Construction and General Division, and each of its 28 branches, is functioning lawfully and effectively.” It’s not immediately obvious, though, how the law’s provisions achieve these supposed aims.

Much of Labor’s legislation, passed with bipartisan support in August, concerns “removed persons.” This category covers all CFMEU employees, officers, or elected workplace delegates who were fired, suspended, or whose roles ended after July 1. It also includes anyone the administrator thinks should have been fired or suspended, or whose role should have ended. “Removed persons” — regardless of whether they are charged with or convicted of any wrongdoing — are banned from being bargaining representatives.

Under industrial legislation introduced by former conservative PM John Howard, a worker can nominate anyone of their choice to be their bargaining representative. This mechanism was designed to undermine the influence of unions and kill off the “closed shop” by encouraging workers to bargain apart from their unions.

Howard’s move had an unintended consequence. In “closed shops” dominated by yellow or company unions, it gave workers the effective right to simply start a new union and nominate it as their bargaining representative instead. This is exactly what has happened at the Coles-Woolworths supermarket duopoly, where low-paid workers have nominated the unregistered Retail and Fast Food Workers Union (RAFFWU) to try to undo some of the damage done by the Labor Party–controlled Shop, Distributive and Allied Employees Association (SDA).

By denying union members the right to appoint “removed persons” as their bargaining representatives, the government sought to preemptively prevent CFMEU leaders and members  regrouping under another name.

The consequences of this move are nothing short of draconian. To spell it out very clearly, Labor’s legislation means that a democratically elected workplace delegate with no ties whatsoever to organized crime can now be legally and permanently forbidden from taking official part in any industrial negotiation.

Labor has also given its handpicked CFMEU administrators the power to determine if and when union elections will be held for the next five years, as well as a veto over who can participate.

And the legislation also makes it clear that when the minister for employment and workplace relations is making decisions about the CFMEU administration, they are “not required to observe any requirements of the natural justice hearing rule.” Labor’s legislation also protects the CFMEU administrators from possible future civil action.

In short, Labor’s attack on the CFMEU is among the most antidemocratic, anti-union moves taken by a federal government in recent history.

Administration Gravy Train

Worse still, Labor’s legislation guarantees the CFMEU administrators handsome remuneration, as determined by the Fair Work general manager — and it legally compels the CFMEU to pay all the costs.

As a result, against their will, union members’ dues are bankrolling administrators who are blacklisting their delegates and union officials. The bill is not cheap.

According to leaked payroll documents seen by this masthead, senior members of the administration team are earning between $14,000 and $50,000 a month for their efforts. At the time of writing, these documents could not be independently verified. However, some of the figures they contain are consistent with information already on the public record.

So who are these administrators? While the word might conjure up images of nonpartisan lawyers or clerks, in reality many on the team are lifelong Labor Party operatives. The Age — which aired the initial allegations against the union — tried to sell this as a sign that the CFMEU was in friendly hands. An October 17 report noted that “the administrator of the union, Mark Irving, KC, is a former union lawyer, and several of his senior staff have union links,” suggesting that this negates claims that the government is “interested in dismantling the CFMEU.”

However, a closer look at the cohort of administrators confirms their closeness with the CFMEU’s factional enemies in Labor and the Australian Council of Trade Unions (ACTU).

Irving was a lawyer with Maurice Blackburn, a law firm with many lucrative union contracts. Irving was intimately connected with the notorious Health Services Union bureaucracy including corrupt former official Kathy Jackson. Irving’s original coadministrator of the Victorian CFMEU branch was ACTU stalwart Grahame McCulloch, although he resigned within weeks, allegedly in connection with sexist behavior.

Irving’s deputy chief of staff is Michael Flinn. Flinn was deputy to ACTU secretary Sally McManus for almost a decade when she ran the New South Wales branch of the Australian Services Union. Since McManus took the ACTU top job, her loyal former deputy Flinn has held a range of roles at the ACTU, including “Director of Growth.” Suffice to say, he did not live up to the title: throughout McManus’s tenure, trade union membership has dropped by more than 3 percent.

Also part of the team is Clancy Dobbyn. The son of a former secretary of the Rail Tram and Bus Industry Union (RBTU), Dobbyn is an ALP operative who has hopped between a range of party jobs. Among other things, he was an advisor to Victorian Police minister Lisa Neville. Neville famously used anti-terror sentiment to justify weapons upgrades for Victoria Police, who then used their new toys against antiwar protesters.

Thanks to their party connections, until just a few years ago, Flinn and Dobbyn were both paid officials for the CFMEU. Although they didn’t last very long in their former roles, they are now back with a vengeance. According to the leaked payroll documents, they are respectively making $25,541.82 and $14,984.32 a month for their efforts.

While not all the other administrators’ identities could be verified from the leaked documents, their pay follows a similar pattern. For one month’s service against the CFMEU, “AC” has taken home $24,710. “CW”, “HM,” and “MM” netted $13,003, $14,984, and $20,672 respectively.

For comparison, the CFMEU-negotiated 2021Enterprise Bargaining Agreement stipulates that a full-time traffic controller with over six months of experience must receive a weekly paycheck of $1,712. Based on the leaked figures, some among the senior group of CFMEU administrators are taking home more than triple that sum.

In short, a group of lifelong political operatives is pocketing members’ money while undermining the militancy that won it in the first place. It’s a situation that speaks to the cynical, self-serving reality of Labor-dominated unions, whose officials preside over declining pay, conditions, and membership while paying themselves many times an average union members’ wage.

“We’re Gonna Smash Those Bastards”

The CFMEU has long been a terrible inconvenience for both employers and the government. It represents over one hundred thousand construction workers and is the most industrially militant union in Australia. Thanks to this militancy, construction workers in Australia have bucked the global trend for laborers on building sites, of low pay and a high risk of dying on the job. By comparison, the United States’ population is twelve times larger than Australia’s while its death toll on construction sites is almost forty times higher.

The CFMEU has led strikes, stopworks, and go-slows, sometimes in contravention of industrial law, to win better wages and to save its members’ lives at work. This is why the CFMEU flies in the face of a consensus in Australian politics that dates back to the 1980s: open confrontation between workers and bosses is to be avoided at all costs.

Former Labor PM Bob Hawke established this consensus in 1983 with the Prices and Incomes Accord, which forbade strikes and mandated tripartite negotiation between government, employers, and unions. In 1986, when the militant Builders Labourers Federation (BLF) — the precursor to the CFMEU — refused to play by Hawke’s new rules, his government used corruption charges as a pretext to deregister it entirely.

Though it was posed in legal terms, the destruction of the BLF was a political decision. When the BLF resisted Hawke’s agenda, he famously snarled: “We’re gonna smash those bastards.”

In return for accepting restrictions on union militancy, Hawke — also a former ACTU secretary — promised workers a “social wage” to preserve living standards. It never eventuated. Profits skyrocketed and wages fell as a share of GDP, setting in motion trends that have now priced workers out of houses, groceries, and education.

The draconian Fair Work regime, which effectively criminalizes most industrial action, is designed to prevent workers doing anything to change this situation. But it has proven insufficient in the face of the CFMEU, which is big enough, tough enough, and, as a result of its members’ militancy, rich enough to simply defy the industrial judiciary and bear the consequences.

This is why the CFMEU is an embarrassment to Labor and the ACTU. It’s living proof that if workers want to boost their earnings and ensure their safety at work, collective militancy is the way to do it.

Trade Unions for Democracy

Labor’s plans to break up the CFMEU have been out in the open since at least 2020, and they’ve  got little to do with the union’s alleged involvement with organized crime. Victorian Labor premier Jacinta Allan made as much clear when she proposed the termination of existing enterprise agreements mere moments after the federal government began to move against the CFMEU. Likewise, construction industry bosses have seized the moment to insist that the administration period be used to end pattern bargaining.

CFMEU members are far from defeated, however, and other blue-collar building industry unions have stood in solidarity with them, including the Electrical Trades Union, the Communications, Electrical and Plumbing Union (CEPU), and others.

It remains to be seen, however, whether this assembling dissident union coalition will draw the obvious political conclusion and break with the Labor Party. Though these unions are mostly led by ALP members, and enmeshed in Labor politics, some have threatened to disaffiliate from the ALP, or to fund pro-union, non-Labor candidates in the coming federal election.

State and federal ALP leaders have dismissed CFMEU resistance. “There might be a last-gasp industrial action today, but nothing will change,” scoffed NSW premier Chris Minns ahead of the September rallies. For his part, Albanese quoted Margaret Thatcher, declaring that “the government is not for turning, and nor is the Australian public.” Their messaging is clear: the death of industrial militancy is here, and there is no alternative.

Labor and the ACTU, however, may have made a severe miscalculation. The unions standing alongside the CFMEU have planned a “trade unions for democracy summit” for December 9.

Among other things, the summit will consider whether to split from the ACTU and form a rival union federation. And some have already taken the first step. The CEPU, which represents one hundred thousand electrical, plumbing, and postal workers, disaffiliated from the ACTU in September. As CEPU national secretary Michael Wright argued, there is “a deep rupture across the labor movement and the consequences are likely to be far-reaching.”