Black bans and blackmail

There’s something dodgy going on in the construction industry but it’s not trade unionism.

Today, the arrests of CFMEU officials John Setka and Shaun Reardon feature on the front page of every newspaper – as, of course, was always intended.

The two men are public figures, and scarcely difficult to find. Yet police pulled Setka over in his car, arresting him in front of his infant children. They raided Shaun Reardon in his house near Geelong, driving him to Melbourne to be charged with blackmail.

‘Blackmail’ comes with connotations of sly underhandedness. It’s the crime of the door-peeper and the mail-steamer, a nasty offence in which private weakness is exploited for personal gain.

Except that’s not what Setka and Reardon have done.

The Australian explains:

Peter Head, general manager at Boral Concrete, Southern Region, and company official Paul Dalton testified at the royal commission that Mr Setka and Mr Reardon warned at a meeting in 2013 that the CFMEU would continue to escalate a black ban against the company if it did not block supplies to Grocon.

‘By making that demand, Mr Setka may have committed the criminal offence of blackmail,’ Mr Heydon, the royal commissioner, said in his interim report in ­December last year. ‘Mr Reardon also may have committed the offence of blackmail or may have aided and abetted Mr Setka and may be liable as an accessory.’

In other words, police arrested Setka and Reardon because of the CFMEU’s campaign against Grocon. The two weren’t shaking down individuals for cash. They didn’t have their fingers in the till. They didn’t stand to benefit personally at all. They were enforcing a union black ban in the context of a long-running industrial dispute: it’s because of that they face up to fifteen years in jail.

To put the penalty in perspective, note that in 2013 a wall collapsed on a Grocon construction site, killing three people on Swanston Street. Grocon accepted responsibility – and paid a $250 000 fine.

The comparison is not made at random. The Grocon dispute is often portrayed as a power struggle, nothing more – a contest over influence between a major firm and a major union. It’s invariably discussed by political pundits exclusively in terms of its consequences for the political fortunes of Bill Shorten, Daniel Andrews or the ALP more generally.

The commentariat rarely mentions the CFMEU’s central demand: union-appointed OH&S representatives to monitor safety on site.

Why might that be important?

Because 185 people died in workplace accidents last year, because construction remains one of the most dangerous industries in the nation, and because the average fine a company receives for a fatal incident stands at about $100 000.

That’s right: if you’re a boss whose shoddy practices leave an employee dead, the cops are not going to pull over your car or come knocking on your doorstep. Criminal prosecutions for industrial negligence are vanishingly rare; the civil penalties imposed so light as to be almost meaningless (does a billion-dollar company even blink at a hundred grand?). Yet in an industry where time equals money, there are obvious material incentives for employers to rush jobs, to take shortcuts, and to skimp on safeguards, particularly in the context of the governments’ drive to reduce ‘red tape’ and restrictions.

That’s why having workers’ representatives monitoring safety matters. Last month, when a concrete slab crushed two men to death on an East Perth worksite, it transpired that the CFMEU had been refused entry to the site sixteen times. As the national security crusaders tell us: if you’re doing nothing wrong, then you’ve got nothing to hide.

Yet it’s one rule for the employers and it’s another for everyone else.

In August, Dyson Heydon ruled himself eligible to continue running the Trade Union Royal Commission (and thereby receiving an annual salary of close to a million dollars), despite having signed up to speak at a Liberal Party fundraiser. His Honour explained why he’d found in his own favour: he was, he declared, incapable of reading emails unless someone had printed them out and thus shouldn’t be held responsible for his actions. This, mind you, in the context of an inquiry that has regularly browbeaten witnesses about their memories of documents they may or may not have signed decades ago.

Since then, we’ve learned that one of the policemen working for the commission had been speaking at forums organised by the Master Builders Association (the professional body for construction bosses) where, according to the CFMEU, he explained to businessmen that ‘CFMEU officials were all criminals and urged them to sign enterprise agreements with the MBA’.

Yesterday’s decision by police to stage the arrests of Setka and Reardon as if the men were dangerous fugitives comes after the AFP took the bomb squad to its raid (which has now been declared illegal) on the CFMEU’s Canberra headquarters, solely to prevent union officials from observing its search.

Bill Shorten was quite right to label the royal commission a ‘politically motivated’ stunt. For Shorten, however, the politics pertain primarily to the conservative effort to link the Labor Party with union militancy. That’s why he’s issued a new policy promising more power for authorities to crack down on unions: essentially, endorsing all the right-wing talking points.

The real issues are far more fundamental.

If the CFMEU can’t enforce workplace safety, more workers will die.

Furthermore, since the inception of combinations in the eighteenth century, trade unions have fought to prevent the criminalisation of their basic function: that is, the facilitation of collective action by employees against employers. Increasingly, tactics that would have been taken for granted a generation ago – picket lines, secondary boycotts, etc. – are being rendered illegal, while unionists who employ such methods are punished as criminals.

That’s why this case matters. The bosses have always called trade unionism ‘blackmail’. If we allow them to set the definitions, the ramifications will be enormous.


Image: Rae Allen / Flickr

Jeff Sparrow

Jeff Sparrow is a Walkley Award-winning writer, broadcaster and former editor of Overland.

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  1. Thanks Jeff. I was planning to write about this tonight. I don’t have to now. You might also remember that in Canberra, the AFP charged CFMEU organiser with blackmail and I wrote at the time this was playing dirty politics to crush one of the few unions to defend members and pave way for attacks on living standards, wages and jobs. His crime was to seek a wage increase for members. The charges were dropped. I think however the State has too much invested in taking on Setka that it can’t drop these charges without exposing the reality of this witch hunt. Thank you Jeff for a great article.

    1. “unions are the only people looking after workers” – this is not true. While I am not familiar with CFMEU, my union CPSU (public services union) are a bunch of criminals that only suck up to the bosses.

  2. Well done Jeff, a good article. Now retired [I didn’t have much to say about it], I’m proud of my time as an OHS Rep and congratulate other Reps for the good work they do.

  3. The philosophers have only interpreted the world, in various ways; the point is to change it.

    Guess who? (I’ll let Homer (Simpson) make the sound effect.))

    Who’s up for the difficult next stage then?

  4. The arrest of these brave CFMEU Organisers only proves the principal that the Ruling Classes have a Police Forces/Judicial System in place purely to protect them. One law for them…………a lesser one for us.

  5. I hope and beleave that will bring turdbull and mates .They are heading down the same path as Joe did in Queensland .the only way the Libs want to win an election .To make out unions and labor party are all crooks .why are the Australian voter so dead set to loose all there very hard fought benefits the unions got for them.

  6. it has been brought to my attension recently that.
    Under Commonwealth corporate law, a Registed buisness can only implement policies not make laws.
    All governments in Australia ( Federal & State) are registered businesses.

  7. My doctoral research showed that average penalties for workplace fatalities in the construction industry were just under 80,000 dollars an average of 18% of total applicable penalty.

  8. I hav been a judge for 15 years and i dont think it is blackmail at all….it is not intended to convict the men but rather to damage unionism…there are some onderful initiatives done by the cfmeu but none of them will find commrnt in the report of the royal; commission.

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