Royal Commission’s rhetoric is hard to swallow

TONY Abbott’s Royal Commission into unions opened last week with the Commissioner, Dyson Heydon, anxious to assure unions that they would be treated fairly. But if that turns out to be the case it would be a marked change from the approach of the Cole Royal Commission a dozen years ago, writes JIM MARR, author of First The Verdict.

DYSON Heydon reached back 140 years to cite a Royal Commission that delivered for union members when his corruption inquiry opened in Sydney last week.

In opening remarks on the first day of the Royal Commission into Trade Union Corruption and Governance, former High Court Justice Heydon, said terms of reference guiding his inquiry “do not assume that it is desirable to abolish trade unions”.

Over the years, he said, there had been numerous inquiries into unions.

Perhaps the first, he suggested, were two English Royal Commissions that sat between 1867 and 1875.

“The recommendations of those two Commissions led to legislation decriminalising the conduct of trade unions in industrial conflicts,” Justice Heydon pointed out.

Leaving aside the need to go back centuries, and travel to a different legal jurisdiction, Heydon’s familiarity with history might have provided some comfort to unionists battening down for another Tony Abbott-inspired bashing.

It certainly contrasted with the cold ideology that permeated Abbott’s Cole Royal Commission into the Building and Construction Industry. Twelve years on, the results of that exercise are all around us.

Courts are dishing out seven-figure fines to unions whose members take industrial action and industrial policeman, Nigel Hadgkiss, is threatening to come after family homes.

At the UTS site in central Sydney, where cranes have caught fire and toppled into busy streets, the Construction, Forestry, Mining and Energy Union has photographed dozens of examples of what it says are clear OHS violations.

The builder, Lend Lease, has opted to shoot the messenger, arguing unions have over-stepped restricted entry rights. The police have been called and safety issues have been shoved down the agenda.

Around Australia, cash-strapped workers’ compensation schemes are denying, or slashing, payments to the families of injured men and women.

Cole turned in a massive technical report that Abbott used to redraw the industrial landscape. On the way through, he presided over 10 months of public hearings that sought to portray building unions as outlaw organisations.

Significantly, Abbott provided that commission with $683,000 for “media relations”, enabling its spin doctor to feed a slew of salacious stories to selected news outlets.
Revisiting the Cole Royal Commission
Come back to the hearing rooms in Goulburn Street, Sydney, and we’ll have a look at some of the raw material he had to work with.

Combative demolition contractor Barbara Strong is a star Royal Commission witness. She suggests a Maori union organiser “should go back to where he came from, where they are known for drinking and bashing their women”.

In sensational testimony, delivered between sobs, she alleges Tommy Mitchell demanded bribes to call off industrial action, and threatened to break her arms and legs.

She says Mitchell threatened her two young children. She was so scared she rang the police and gave a statement.

Strong said the threats and demands were made during a heated on-site meeting, involving at least seven people, and were repeated in a telephone call her husband, Stephen, overheard on speaker.

Understandably, the media went nuts.

There were photos, screaming headlines and even a front page caricature of a muscle-bound standover man in wrap-around sunnies.

Mitchell, his wife and daughters, endured days of this.

It mattered little that no one else at the meeting, including employers and a Master Builders Association rep, supported her allegations. And even less that Mitchell emphatically denied them.

Most instructive, though, was the commission’s response when, at the insistence of CFMEU lawyers, it finally got its hands on relevant Telstra and police records that showed:

• around the time Strong said Mitchell had rung threatening to break her arms and legs, inquiring about her love for her children, and the value she placed on her own life, she had received only three incoming calls — two from an identified builder and one from the Master Builders Association
• around the time she testified she had taken another call from Mitchell, her only incoming call had been traced to a John Copeland from the Office of the Employment Advocate
• notes made by a senior constable who attended Strong’s site recorded a complaint about a sub-contractor who, the commission had heard in evidence, claimed to be owed money by the Strongs. There was no reference to Mitchell or any other union official.

Weeks after the story had led news bulletins all around Australia, Senior Counsel Assisting Nicholas Green rose to address the Commissioner. But if Mitchell and his union were expecting an apology or an admission that the Commission had got it wrong, they were quickly disappointed.

“I tender a file note dated 18 August, 2002, from David Allen, investigations coordinator, addressed to Counsel Assisting. That’s in respect of Mr and Mrs Strong from the period of 4 October, 2001,” he said.

Then he sat down and the Commission moved onto other business.

CFMEU counsel, Ian Latham, tried to get more information on the public record.

“I informed Mr Shoebridge,” Green replied, referring to a previous union request for transparency, “and I repeat now, I have no intention of proposing any of that material to anyone.”

This was how the Cole Royal Commission, armed with 60 million taxpayer dollars and 135 full-time staff, chose to go about its work.
Tax evasion and poor safety ignored
Counsel Assisting were in possession of an ATO submission on systemic employer tax evasion and knew full well the toll workplace injuries and deaths were taking on the families of industry participants.

But, instead of going there, they chose to serve up one dodgy operator after another.

Fernando Sanna and Eddie Lombardo ran claims that became themes of the hearings.

Sanna alleged the CFMEU conspired with head contractors against small companies, and, specifically, that it had used industrial action to drive his company to the wall. He highlighted a week-long strike.

Lombardo claimed the union had forced his concreting company into liquidation with the loss of 29 jobs, tried to use safety issues to push him into signing an EBA and had suggested “backhanders” would solve his problems.

The claims of these “battlers” were broadcast across Australia, untested, as one of the Commission’s rules meant days and, sometimes weeks, went by before hostile witnesses could be cross examined and, then, only with severe restrictions.

By this time, obviously, the media caravan had moved on.

When the CFMEU’s Martin Wyer gave evidence he said Sanna’s father, Mario, had threatened to kill him and management had poured petrol on a smoko hut and threatened to light it with workers inside.

He said the union delegate’s wife had complained to police about 13 anonymous phone calls, received around this time, threatening she would be raped.

Wyer said Sanna ran phoenix companies and failed to meet tax and workers’ comp liabilities.

Sanna denied it but, under cross examination, admitted involvement in at least four companies that had gone bust. Others, he said, had been operated by his brother.

Lombardo, too, denied being a phoenix operator but, eventually, admitted involvement with a number of unfortunate enterprises, including Ritex Contractors, Cotex Contractors, Cotec Administration, Ritex Holdings, Cotec Concrete, Erinmore Holdings, Hitex Concrete, Ricon Construction, Ricon International and Ricon Design and Construction.

Oh, and in 1996, he had been barred from being a company director.

And when Counsel Assisting couldn’t rely on witnesses of this calibre to carry their narrative, sometimes, they just went ahead and did it themselves.

Dr Matt Collins threw a classic to the media and was rewarded with headlines like ‘Paying for peace: the Meriton way’.

Based on discovery orders that showed the CFMEU had turned down an $8.25 million offer for its central Sydney offices in May 1997, but sold them to developer Meriton for $10.5 million in July 1999, he suggested the union had pocketed a $2.25 million bribe.

Collins told the Commission he hadn’t been able to find out whether or not a development order had been granted that would have boosted the property’s value.

It had, and Collins could have found out if only he had bothered to ask.

In his opening remarks, last week, Counsel Assisting Jeremy Stoljar pointed out that a Royal Commission was an inquiry, “not adversarial litigation”.

Recent history tells us that that theory doesn’t always work in practice.

This is the second article in a two-part series by Jim Marr on the Royal Commission into unions. Read part one, ‘Abbott’s Royal Commission lets dodgy bosses off the hook’.