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Blowing the whistle on AFL umpire threat

A union’s warning to the AFL over a particular official reinforces the need for a building industry watchdog, writes Morry Bailes.

Jun 20, 2024, updated Jun 20, 2024

The recent standover tactics by Victorian CFMEU boss John Setka have left most Australians unimpressed.

His threat to work-to-rule on AFL related construction projects is because the AFL had the temerity to employ as its chief umpire Stephen McBurney, formerly a Commissioner of the Australian Building and Construction Commission – a body the CFMEU loved to hate.

The ABCC was “was an independent statutory authority of the Australian Government, responsible for promoting understanding and enforcing workplace relations compliance in the Australian building and construction industry”.

After its earlier iteration was abolished in 2012 by the then Gillard Labor Government, it was reintroduced by the Turnbull Coalition in 2016, when the former prime minister called a double dissolution over the issue of a failure by the Parliament to pass legislation for its re-establishment.

The ABCC was perceived by the CFMEU as a union-busting or at least union-thwarting body. Building developers on the other hand supported it because it curbed some of the excesses of CFMEU conduct.

There have been many successful criminal prosecutions of CFMEU officials. As soon as the current Albanese Government was elected the ABCC collapsed once again. Thus the ABCC has become emblematic of a schism in law and philosophy between the right and left of politics as to how to regulate the conduct of building construction unions and in particular the CFMEU.

After Setka’s attack on McBurney, which was an attack on the man not the office he previously held, we are left to wonder whether this conduct is lawful. As to the intended work-to-rule approach, those cases are difficult to prove, particularly now there is no ABCC. Any complaint made against a union or union official is now dealt with by the Fair Work Ombudsman. The current office does not have the same teeth as the ABCC once did.

Additionally, the legislation is largely framed to discipline employers, not employees or unions.

The latest on that front is that the Fair Work Ombudsman has started an investigation into the conduct and remarks made by Setka, who is shortly to stand down as union secretary. That does not mean however that he will necessarily be found to be in breach of the legislation, just that the matter is now subject to investigation. But at least the Fair Work Ombudsman is looking into it.

A question remains: is Setka’s conduct otherwise criminal conduct by amounting to something akin to blackmail? The Victorian Crimes Act provides as follows:

CRIMES ACT 1958 – SECT 87

Blackmail

(1)     A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—

(a)     that he has reasonable grounds for making the demand; and

(b)     that the use of the menaces is proper means of reinforcing the demand.

(2)     The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.

Whether what Setka has threatened amounts to blackmail is frankly unclear.

A complaint will need to be made to police, and police will need to investigate to get the facts on the table, likely seeking advice from the Victorian DPP along the way. These eventualities are possible, but not probable. Second, any criminal allegations must be proved beyond reasonable doubt which is a high standard of proof.

So are we left with the fact that a trade union in Australia can issue a direct threat of industrial action against the interests of a sporting organisation, because one of its umpires held an earlier statutory office that the secretary and his branch of the union didn’t like?

Given that our federal government has been accused of being in the thrall of the trade union movement, what has the Prime Minister to say about it?

So far he has largely confined his remarks to suggesting that it is no business of Setka’s to dictate to the AFL, but that the matter is ultimately one for the AFL to deal with. He has additionally relied on the ALP’s earlier expulsion of Setka as a member to demonstrate his government’s resolve.

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Until Tuesday of this week that was about it. The most recent development however is an announcement by Work Place Relations Minister Tony Burke that legislation will be introduced to the federal parliament to allow the long suffering manufacturing division to at long last leave the CFMEU. Many may think that it’s about time.

The peak union body the ACTU was also, until Tuesday, entirely unforthcoming and said nothing at all. Were we to interpret that as the ACTU condoning this conduct because it wasn’t condemned?

Finally, however, ACTU Secretary Sally McManus backed in the government. “Mr Setka’s personal grudges have led to parts of his union wanting to leave. There is no place for the conduct of personal vendettas in our movement,” she said.

The response of the building industry has been completely the opposite and was immediate.

Denita Wawn, Chief Executive of the Master Builders Association, summed up the sentiment by saying: “Welcome to our world. The behaviour we have seen over the last few days is something our industry has to deal with day in, day out and it’s only getting worse since the industry watchdog was abolished. Everyone pays the price when people think laws don’t apply to them.”

Given that one of the projects potentially subject to the CFMEU’s vendetta against the AFL is the build of the new Adelaide Crows headquarters and grounds, our own Premier had something to say and was a fair bit more critical of Setka than the PM.

He said “the boss isn’t the enemy”, which for those struggling to run their own businesses and employ people in a very difficult economic environment is a welcome sentiment. He also questioned how the Setka remarks were in any way furthering the industrial ends of the members of the CFMEU. True indeed.

Subject to the outcome of the investigation of the Fair Work Ombudsman, what this episode highlights is the need for further law reform to control stand over bullying tactics by some unionists.

Trade union membership in the Australian private sector is at an all time low. The Australian Bureau of Statistics tells us that in 1976 over 50 per cent of workers were members of trade unions. In 2022 it was 12.5 per cent, a figure that included public sector unions where numbers are very much higher than in the private sector.

According to the World Socialist Web Site, private sector union membership in January 2023 in Australia was only 8.2 per cent, and said in the same article that since 2016, CFMEU membership had plummeted 34.3 per cent to 63,372.

How then as a matter of both law and common sense can private sector unions said to be the least bit representative of the Australian workforce? Yet we have Setka effectively telling the Prime Minister to stay out of it and that he ought to be free to threaten the AFL and thereby other Australian employers with industrial tactics to ‘go slow’ in the workplace, and get away with it.

If there was ever an example of why Australia needed the ABCC or some similar independent non-government authority ensuring that building construction can occur in this country uninterrupted by union thuggery, it is this. Building construction is at the heart of our challenge to provide housing when we are in drastically short supply. Yet here we have the CFMEU, saying that it will work-to-rule and its Victorian secretary confident that he has the protection of law.

The AFL has done the only reasonable thing it can and that is to stand by its man in Stephen McBurney.

But the wider question, especially for the federal government to answer, is where to from here? When productivity gain is on the lips of every economist, what law reform will the federal government deliver to ensure that this dreadful chapter cannot occur again and guarantee that building construction in this country can occur unimpeded as we so desperately need? Or is this a government as enslaved to the union movement as some would have us believe?

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and Law Society of South Australia and a former state Liberal Party vice-president.

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