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5. The Employment Advocate

Introduction
5.1 Anti-union Approach of the OEA
5.2 Contravention of International Obligations
5.3 Inappropriate Investigative Methods.

Introduction

The CFMEU does not support the current powers, standing or procedures of the Office of Employment Advocate (OEA). Since its formation the OEA has not operated in a manner that would promote a balance between the roles, rights and obligations of employers, employees and unions. In the construction industry in particular the OEA has taken an antagonistic stance towards unions and has refused to recognise the legitimate role to be played by unions in the industrial relations system.

We briefly comment below on the bias of the OEA against unions, the contravention of Australia’s international obligations inherent in the OEA’s functions in relation to AWAs and the highly inappropriate investigative methods employed by the OEA.

5.1 Anti-union Approach of the OEA

The OEA’s record shows that they do not take an even-handed approach between employers and unions. In answer to a question on notice earlier this year the OEA stated they had taken six cases to court, five against unions and one against an employer. That case concerned a Victorian leisure industry employer that had allegedly failed to offer work to a current employee on the grounds that they would not sign an AWA.

The OEA has been zealous in pursuing unions over freedom of association matters yet has failed to initiate any prosecutions of employers for preventing employees from joining the union of their choice. This is despite the fact that the OEA has informed the Senate Estimates Committee that it has received complaints from both unions and individual workers about employer pressure to prevent union membership. Further, research commissioned by the OEA showed that some employers admitted to actively discouraging workers from joining a union (Wallis Consulting Group, 1999).

The OEA may attempt to use language that is neutral, at least on the superficial level. However, their anti-union agenda is clear and is even reflected in the headlines of media reports on OEA activities; ‘Workers urged to resist unions’ (Border Mail 14/6/99) ‘Government urges stand against unions’ (Geelong Advertiser 14/6/99) “Shopping the unions’ (SMH 12/6/99)

The CFMEU has also initiated an action in the Federal Court claiming that Mr Hamberger tried to coerce it, and a building company to alter a labour agreement negotiated in May for the Federation Square project. In a hearing over the discovery of a document in relation to this case Marshall J said;

“The proceeding before the court involves a very serious allegation of what is contended to be a gross abuse of power by a very senior public official; that is, that he has allegedly engaged in the very conduct which it is his duty to seek to prohibit. It is analogous to a proceeding in which a corruption claim is made against a senior police officer.”

5.2 Contravention of International Obligations

The legislative function of the OEA to promote the use of individual agreements and it's failure to promote collective agreements is in clear contravention of Australia's international obligations. This was made clear by a decision of the International Labour Organisation (ILO) Committee of Experts in March, 1998. That decision stated that the WRA 1996 was in breach of the ILO Right to Organise and Bargain Collectively (No. 98) Convention. The Committee concluded that;

" primacy is clearly given to individual over collective relations through the AWA procedure. The Committee considers that the provisions of the Act do not promote collective bargaining as required under Article 4 of the Convention."

The WRA s.83BB(2)(c) states that the EA must have particular regard to;

"promoting better work and management practices through Australian Workplace Agreements."

There is no evidence of the OEA taking action against employers who require that applicants must be prepared to sign an AWA. When a union acted against an employer in such a case, a Federal Court judge described the offering of employment on the condition of entering into a AWA as ".. unconscionable conduct which no employee in a humane, tolerant and egalitarian society should have to suffer". (Australian Services Union v Electrix Pty Ltd FCA 211 11/3/99)

In answer to a question on notice from Senator George Campbell the OEA stated they had taken no specific steps to promote certified agreements. The full answer is included below.

"Under the legislative functions of the Workplace Relations Act 1996 the Employment Advocate is required to have particular regard to promotion of better work and management practices through Australian Workplace Agreements. Consistent with the legislation the OEA does not take any specific steps to promote certified agreements. Consequently there is no budget to OEA resources to promote agreements other than AWAs." (Question Number : W143-146)

Newspaper reports have suggested that the appointment of Mr Hamberger as the EA was an indication by the Government that they wanted the OEA to increase the concentration on individual agreements. "His promotion to the top job last December was widely seen as a signal that the Government wanted a more proactive stance on encouraging individual contracts." SMH 12/6/99 p.36.

The OEA are clearly fixated by the level of individual agreements being lodged. They issued a Press Release on 23/2/99 announcing that the 50,000th AWA had been lodged. The promotion of AWAs continued in the OEA Autumn 1999 Newsletter;

"Predicts one in ten employees might soon be covered by AWAs With the approval rate of AWAs climbing by the month, the OEA can demonstrate AWAs are viable, and that they often lead to better workplaces".

5.3 Inappropriate Investigative Methods.

Some of the investigative methods used by the OEA would be more commonly associated with the FBI in the Hoover era rather than a modern Australian statutory body. The OEA 'Legal and Compliance Procedures Manual', February 1998, contemplates the use of various investigative and surveillance techniques.

The Manual discusses the use of investigative techniques such as taking induced statements, (where the person giving the statement is given immunity from actions by the OEA) observation at a workplace and the use of concealed tape recording equipment. Further, the Manual allows for the use of external contractors to take statements or collect evidence. External Contractors can also be used "..in investigations where there is a need for technical assistance beyond the OEA's capacity." (p.55).

It has been the CFMEU's experience that the OEA take legal action before first attempting to solve matters informally. This is clearly not the approach the OEA professes to take in their Manual.

"Voluntary compliance is the key objective of the work performed by compliance and all reasonable steps should be taken to achieve voluntary compliance. Speaking to a person/s the subject of a complaint and obtaining voluntary compliance will usually be a satisfactory resolution to the matter." (page 12).

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United we bargain - Divided we beg.
	Contact the National Office, Construction Division at: Level 12, 276 Pitt Street, Sydney, NSW 2000 Ph: 02 8524 5800 Fax: 02 8524 5801 Email: queries@fed.cfmeu.asn.au Postal address: PO Box Q235, Queen Victoria Building Post Office, Sydney NSW 1230.