Call for umpire opposed

ANARCHY still rules on WA’s building sites, according to the Royal Commission into the Building and Construction Industry.

But the royal commission, in Perth for the past two weeks, has found two things that both unions and builders seem to agree on – that industrial relations in the sector is in a mess and that another independent umpire is not wanted.

Employers were loath to call for an in-dependent umpire and union representatives opposed it because they feared it would undermine their effectiveness.

Baulderstone Hornibrook CEO Peter Dempsey admitted that cultural change was needed in the building industry.

However, he said this was best handled in-house by individual builders rather than through regulation or the interference of a third party.

Counsel assisting the commission John Agius QC asked Mr Dempsey for his thoughts on legislation that would introduce the threat of either civil or criminal penalties for industrial relations breaches.

“I think we have enough legislation now. I think it is about behaviour, and I don’t think necessarily legislation, black-letter law, helps in that area,” Mr Dempsey said.

Master Builders Australia WA executive director Michael McLean told WA Business News that employers were unwilling to recommend greater regulation for fear of union retribution.

Such retribution has already been seen in WA when builders have referred complaints to the State Government’s Building Industry Special Projects Inspectorate.

Australian Manufacturing Workers Union State secretary John Ferguson said he feared the notion of a third party having greater involvement in industrial relations on construction sites.

He said he preferred that issues were resolved between the employer and the unions.

“If there was a system where it was mandatory for the issue to go to the industrial commission, you would never get the issues resolved through conciliation between employers and employees, because the employer would simply rely on the fact that, ‘I don’t have to worry too much about resolving this, because an independent umpire will resolve it at the end of the day’,” Mr Ferguson said.

“Also, we certainly wouldn’t be party to any provision, if you like, that would dilute our right to take industrial action.”

Mr Ferguson said using the industrial relations commission watered down the rights of workers and would provide an imbalance in the industrial relations system.

“I mean, my preference is not to go near the industrial commission, because we should be mature enough to resolve the problems between us,” he said.

Mr Agius questioned the ability for companies to be able to maintain the high moral ground in the current industrial climate.

“Can Baulderstone Hornibrook do this by itself, given that it competes in an industry where there are other builders who, so it seems, on an industry-wide basis, make inappropriate payments nearly every day?” he asked Mr Dempsey.

“What can you do, as a CEO of one building company in that environment, unless you get the support of legislation?”

Mr Dempsey said despite competitive pressures companies could still operate in a principled way.

Both Commissioner Terrence Cole and Mr Argius dismissed this, saying it appeared that the root of the problems were far greater than any individual company could deal with internally.

At the hearing Mr Cole repeatedly made it clear that he objected to both the employers’ and unions’ reasoning for not increasing legislation and regulation.

“There seems to be a view on both sides, from the employer and the employees’ side, that there’s something special about industrial relations, particularly in the building and construction industry, that the normal attitudes of compliance with the law don’t apply because it relates to industrial relations,” he said.

“I’m quite unable to understand that.

“The police have difficulty in getting on to sites to investigate criminal activity, because it’s said it is related to an industrial relations issue.”

The commission has heard evidence that police attendance on construction sites would result in work stoppages.

However, WA Police Service assistant commissioner John Standing said he did not understand this to be a problem for the police when they were required to investigate complaints on building sites.

Assistant commissioner Standing admitted building sites were difficult to deal with because the police had to rely on the BISPI to investigate complaints.

“There’s simply no reason why the criminal law and the civil law shouldn’t apply on a construction site, just as they apply everywhere else,” Mr Cole said.

“I could understand 100 years ago, perhaps, why it was that, but I can’t understand at present, in 2002, in a civilised society, why two disputing parties shouldn’t either be required to or shouldn’t agree to take the decision of an independent umpire.

“In other words, if they cannot reach agreement, and this is the whole basis of the rule of law, if people are in dispute about anything and they can’t solve it, the rule of law says we will not have anarchy, we will have an independent person, normally the courts, who will decide it.

“That is the very basis of our democracy, it is the very basis of our society, but in this one instance, there is this reservation which says, ‘But in industrial relations law, we don’t have to follow that’.”

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