The Abbott government's Royal Commission on Trade Union Governance and Corruption is aimed at the wrong target.
It's the regulators and the law enforcement agencies who have allowed a few select unions to get away with blatant criminality for years that the commission should pursue.
If unions break the law and escape prosecution, unions will keep on breaking the law. It's that simple. The scandal the commission must investigate is why the rule of law doesn't apply to trade unions.
The big issue for the commission is not a handful of union officials using their members' money to pay for personal expenses. The administration of trade unions is not the big issue either. Unions should be governed by the same laws that apply to public companies and union officials should operate under the same provisions as apply to company directors.
The big issue confronting the commission is the endemic culture of corruption and criminality that thrives in some industries, and in particular in the construction industry.
If anyone is any doubt about what's happening on building sites around the country they should read the 15-page letter of July 7 from Mike Kane, the chief executive of the building materials company Boral to the commission. It's publicly available at the official commission website.
It's chilling. It is one of the most important statements made about industrial relations in this country in the past 20 years. Responding to it, Dave Noonan the construction division secretary of the Construction Forestry Mining and Energy Union pointed out that Kane was American-born. Kane is indeed American-born. And that's the point. It's taken a foreigner to have the guts to stand up to union intimidation. If Kane were Australian-born and bred he'd take it for granted that when a union makes a threat the authorities will do nothing, and he'd be forced to give the unions what they want.
As Kane's letter makes clear there are plenty of laws already on the books against corruption, blackmail, and intimidation. But the laws are not being enforced.
SELECTIVE APPLICATION OF THE LAW
The authorities charged with enforcing the law are picking and choosing when they will apply the law and when they won't.
For example the Australian Competition and Consumer Commission is always willing and eager to bring the full force of the law to bear when a door-to-door salesperson ignores a "Do Not Knock" sign, or when a supermarket wants to sell cheap petrol. But when trade unions threaten illegal boycotts against companies the ACCC claims "we had difficulty getting evidence."
At a parliamentary hearing last month the ACCC attempted to excuse its failure to apply the law to trade unions by claiming potential witnesses were "not co-operative". That's not surprising — union officials could hardly be expected to be anything else. The ACCC hasn't explained why up until very recently it has refused to use section 155 of the Competition and Consumer Act to compel witnesses to answer questions
As Nationals senator Bridget McKenzie said in Parliament in March about the actions of the CFMEU against Boral. "With 15 supporting affidavits, three separate injunctions and ongoing contempt proceedings before the Supreme Court of Victoria I seriously struggle to understand what issue Mr Sims [the boss of the ACCC] has identified in gathering sufficient evidence. The evidence of the CFMEU secondary boycott is freely available to anyone who might choose to look."
In its submission last month to the Harper Competition Review the Australian Chamber of Commerce and Industry providing a forensic analysis of the history of the ACCC's failure to enforce the law on illegal boycotts. In 2003 the Cole Royal Commission on the Building and Construction Industry concluded "few of the many instances of secondary boycotts which have occurred in the building and construction industry and which have come to the commission's attention have been referred to or pursued by the ACCC."
If the current Royal Commission on Trade Union Governance and Corruption is to provide any benefit to the community it must answer the question why regulators and law enforcement agencies have tolerated a situation whereby there's one law for trade unions, and one law for everyone else.
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