The Cole Royal Commission: full of sound and fury, signifying nothing

Hands up all who have read transcripts from the Cole Royal Commission into the Building and Construction Industry. Bugger all? Well that will suit Tony Abbott, whose plan to write unions out of the construction industry script is entirely dependent on the average Aussie being kept in the dark.

Much play has been made, by Abbott and the media, of 392 Commission findings of "unlawful conduct", the vast majority against the CFMEU and its officers.

Well, let's go there, noting that Cole and Abbott have been careful to use the word "unlawful" rather than "illegal". How do these findings stack up against the claims on which the Workplace Relations Minister and his Office of the Employment Advocate justified the Royal Commission, namely that the industry was characterised by widespread standover tactics and corruption?

Below are the essence of Cole's first three findings against the CFMEU's NSW branch and, believe me, they give an accurate flavour of what follows …

1. "Murphy, in that capacity, entered the Whitehaus Apartments site on 24 April 2002 and did not notify the occupier of the premises of his presence as soon as was reasonably practicable;
   "on the material before me, I am satisfied that Daniel Murphy, an organiser for the Construction, Forestry, Mining and Engergy Union, engaged in unlawful conduct".
2. "Fryer, in that capacity, entered the Whitehaus Apartments site on 24 April 2002 and did not notify the occupier of the premises of his presence as soon as was reasonably practicable;
   "on the material before me, I am satisfied that Lincoln Fryer, … engaged in unlawful conduct".
3. "Smith, in that capacity, attended the Whitehaus Apartments site on 28 May 2001, stopped work on the site and held discussions with employees during working hours outside of meal-time, or other break times;
   "on the material before me, I am satisfied that Phillip Smith … engaged in unlawful conduct".

Fair dinkum, Cole has uncovered the industrial equivalent of jay walking and recommended the equivalent of the death penalty.

He has come up with 212 recommendations designed to ensure that building workers have no effective voice in their industry.

This is not just an argument that Cole's "unlawful" findings are so far from the Abbott-Hamberger predictions that they should be overlooked, however. Far from it, his Commission was so flawed, so inherently biased, that its findings and recommendations should be rejected in their entirety.

Alan Jones, hardly a trade union activist, was on the money when he advised Abbott to use the report as a door stop on a Canberra garage.

The Commission process was highlighted when it opened its Sydney hearings in June last year. Its investigators had been trawling NSW for three months looking for rorts and had prepared around 110 witness statements. Four or five were overviews from peak bodies, the rest, without exception, were allegations of wrong doing against trade unionists. It beggars belief that a $60 million Commission couldn't discover one misdemeanour by any employer right across the state.

Since then, about a dozen individuals have revealed they made serious allegations against non-union parties only to be told their testimonies would not be needed.

The result was a parade of rip-off artists making accusations against the CFMEU and its members.

They made lurid claims. Many which hogged the headlines have since been shown to have been false. Others were accepted by Cole, in the face of outright denials, and evidence that the accusers, themselves, were engaged in unlawful and even, downright illegal, activities.

But this Commission wasn't established to shine a torch into their worlds. How else can you explain the fact that both the ATO and, eventually, Cole accept there is widespread tax evasion by employers but the Commissioner's report does not make one finding of tax evasion against a single employer, anywhere in Australia?

Cole's report opens its section on "Bricklaying and Masonry" with a classic example of its modus operandi…

"Mr Andrew Clifford Ball is a sole trader trading as Ingleside Bricklaying," Cole writes.

"Ball engages his employees on a casual basis. He has individual employment contracts with his workers. Ball pays no Construction & Building Unions Superannuation Fund (or any other superannuation), Australian Construction Industry Redundancy Trust or Coverforce Top-Up Accident Scheme contributions for his workers. The evidence of Ball would support the conclusion that he has little or no regard for complying with statutory obligations with respect to his employees."

Against that background, Cole accepts every allegation Ball has made and, on that basis, finds 15 separate inappropriate actions by union officials.

This was the Commission in a nutshell. A shonk would drop a bucket, on the way through he would reveal himself as a tax cheat, super defaulter, exploiter of illegal immigrants, or worse, an operator of unsafe sites.

It never appears to cross Cole's mind that these "inappropriate" or "illegal" actions might just explain the union responses he finds so offensive.

The CFMEU contends it must take an active interest in tax fraud, super rip-offs and safety issues in an industry built on lowest-tender contracts. That to do otherwise would expose the workforce, its members, to plumetting living standards, insecurity, serious injury and even death.

Cole, and those who assisted him at the Commission, simply reject this. The reaction of Counsel Assisting to a Queensland dispute in which unionists defend their actions by tendering evidence of a worker falling down a lift shaft; dozens of photos of safety problems; and a video highlighting more than 100 safety issues, is most instructive.

"In our submission" Counsel Assisting tell Cole, "for every practical purpose it is meaningless to ask whether any workplace, in particular a large building site is safe … We therefore do not proposed to consider whether the Nambour site was safe."

There you go, that small matter out of the way, they ask for dozens of adverse findings against unionists who had based the whole of their defence on safety concerns.

In Cole's view compliance is none of the union's business. In fact, very little is.

The industrial landscape, redrawn by Cole, would limit unions to negotiating contracts once every two or three years and only then after being invited by a majority ballot on every site. Other than that, they can get back in their boxes and keep their sticky beaks out of the proper functioning of the market.

If they don't they will face a range of fines and the possibility of imprisonment, or alternatively, deregistration of their organisation. All of these options to be policed and prosecuted by a special Building Industry Commission.

There may well be suggestions of merit buried amongst Cole's 6900 pages. After all, a strong bias and a demonstrable lack of understanding of industrial relations do not mean the man is thick.

Unfortunately, though, we will never know because the process was so wretched that each and every result is questionable.

Your average building worker could have told the Commissioner that sloppy foundations and poor raw materials make for an ordinary outcome. Then again, all the evidence suggests, they would have been the last people he would have asked.