Ask almost anyone involved in the construction industry what outcome
they expect from the Cole royal commission and the reply will be negative.
The consensus is that the commission will hand down its report and within
a short period the industry will return to patterns of industrial
relations thuggery and intimidation.
But something has happened to suggest that a different outcome could be
possible. About two weeks ago the commission stopped taking evidence,
apparently to begin writing its report. However, last week it unexpectedly
released yet another discussion paper, with invitations for more
The paper, the 13th, creates an entirely new focus away from industrial
relations perspectives. It looks at competition issues and asks
fundamental questions about regulation in society. One interpretation is
that it builds on a scenario put to the commission that the industrial
relations war in the industry is in fact a charade for a complex process
of market and competition destruction made legal by employment law.
Suddenly the focus has shifted from considering unions as the bad guys
to looking at the behaviour of businesses that don't want competition.
On the surface, this scenario could appear fanciful. But it transpires
that the great institutional defender of competition and consumer rights,
the Australian Competition and Consumer
Commission, has limited capacity or willingness to interfere in
competition destruction where it involves industrial relations, because
the Trade Practices Act prevents it from interfering with
Even the National Competition Council supports a public policy position
of excising labour issues from competition law.
Suddenly the industry's problems seem to have deeper causes than the
"good-evil employer versus evil-good unions" stance that
typifies the public debate.
In the construction industry's present round of enterprise bargaining,
businesses that would normally be competitors for plumbing, form work,
concreting and other tasks meet with unions to discuss prices, rates and
work practices. The meetings are legal because they pertain to employment.
But remove the unions from such meetings and start talking and fixing
prices for tenders, concrete, wiring and other inputs, and the
participants risk facing heavy fines for collusion under the Trade
The reality is that the legislative and policy framework of competition
law has long drawn a distinction between declaring market collusion
illegal and the legality of the same behaviour under employment
In construction, labour issues constitute a large part of costs and
dictate commercial dynamics. The distinction between price fixing on
labour and price fixing and competition destruction on tenders is
Taking this perspective, unions look like partners with business in
market manipulation, with government the creators of opportunity.
Union-employer battles become smokescreens to fool the public and
non-insiders in the industry who are the victims of the manipulation.
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