The Third Way: Welcome to the Third World
Union Power in Context: Industrial Relations in the Building Industry
Deed between the NSW Government and CFMEU and BWIU
This Deed made this 16th day of March 1994
The Honorable (Mrs) Kerry Chikarovski MP Minister for Industrial Relations and Employment for and on behalf of The State of New South Wales ("the Government")
Construction, Forestry, Mining and Energy Union, Building Unions Division, NSW Divisional Branch
Building Workers' Industrial Union of Australia, NSW Branch (both referred to as "the Union")
The Government and the Union have determined the following objectives:
- 1.1 To normalise relations between the Government and the Union;
- 1.2 To address Government concerns with the conduct of the Union in the construction industry in NSW as reported by the Royal Commission into Productivity in the Building Industry;
- 1.3 To establish guidelines for, and commitments and undertakings by, the Union and the Government;
- 1.4 To establish an alternative to de-registration proceedings being pursued by the Government;
- 1.5 To establish a monitoring mechanism to deal with breaches of the Deed.
The Government and the Union note the following circumstances:
- 2.1 The Union and the Government recognise that there are various aspects
of the building and construction industry in need of reform and are committed
to major reform of the industry. It is recognised that the industry must
be efficient and competitive if it is to thrive and create jobs.
- 2.2 The undertakings and commitments contained in this Deed in no way are to be taken as an admission of improper conduct by the Union.
- 2.3 The Union notes that the Royal Commission into Productivity in the Building Industry concluded that during the 1980s the Union had been a party to unacceptable industrial relations conduct, and that the Government has accepted that conclusion. The Union acknowledges that during the period covered by the Royal Commission, certain workers, members, clients, employers and a small number of union officials engaged in inappropriate conduct. A number of internal positive initiatives have since resolved these past difficulties. The Union also notes that the final report of the Royal Commission also found that there was no evidence of the Union engaging in widespread or serious corruption, and that there was "no evidence of systematic violence or physic intimidation by unions or unionists".
- 2.4 The Government believes that the past conduct of the Union constitutes grounds for de-registration. However, the Government's primary concern is with the future conduct of the Union and the state of the industry. Accordingly, the Government has decided not to pursue de-registration proceedings on the condition that the Union complies with the undertakings contained in this Deed...
- ... 3.10 The Union is opposed to, and will not engage in or support, victimisation [including as defined in the Industrial Relations Act 1991, !NSW)I, threats, and intimidation against any person(s) in respect to whether a worker is or is not a union member. Victimisation does not include the Union persuading, encouraging, or convincing workers in a proper manner to join and/or maintain financial membership of the Union.
- 3.11 The Union will continue to comply with the victimisation provisions of the Industrial Relations Act 1991, (NSW).
- 3.12 The Union will continue not to engage in conduct towards its members, or those eligible to be members, which is an offence under State and Federal industrial legislation.
- 3.13 The Union will abide by the right of entry provisions contained in State and Federal industrial legislation, awards and agreements to which the Union is respondent.
Occupational Health & Safety
- 4.1 The Union is committed to promoting the highest standards of health
and safety in the construction industry. The Union is committed to its
own compliance and the compliance of its members, to the rights and obligations
under the Occupational Health and Safety (OHS) Act 1983 (and Regulations)
as well as the relevant procedures in awards and agreements to which the
Union is a party.
- 4.2 The Union is committed to a responsible approach to the management of safety, and will co-operate with the Government and employers in the trialing and implementation of agreed occupational health, safety and rehabilitation management systems and plans.
- 4.3 The Union and its members will comply with determinations by WorkCover Authority inspectors made under the OHS Act 1983 and associated legislation. Where conditions involving a reasonable and genuine risk of death or injury prevail the Union reserves, on behalf of its members, the right to refuse to work under these conditions.
- 4.4 The Union undertakes that, where an alleged unsafe condition exists on a construction site, it will allow work to continue in all areas to which there is safe access and which are not affected by that condition and will not limit the right of any employer to transfer workers to other construction sites in a manner consistent with award and legislative provisions.
- 4.5 The Union undertakes that where safety rectification work has been satisfactorily completed in an area of a construction site,: work will immediately resume in that area.
- 4.6 The Union undertakes that where work has ceased due to the identification of an unsafe working condition, the Union will refrain from making a return to work conditional upon any matter other than the rectification of the said unsafe condition.
- 4.7 The Union undertakes that where safety rectification work is required in an area of a construction site, the Union will cooperate to ensure that such rectification work will immediately commence in that area.
- 4.8 The Union will continue to exercise its rights in respect to the enforcement of safety standards and legislation through the mechanisms contained in the OH&S Act.
Workplace Reform, Best Practice and Continuous Improvement
- 5.1 The Union will co-operate with the Government, employers, employer
associations, contractors, and subcontractors in workplace reform, the
aim of which is to bring about both significant and lasting cultural change
in order to improve productivity, employer/employee relationships and competitiveness
in the construction industry.
- 5.2. The Union recognises that enterprise based agreements negotiated with individual employers are to encompass commitments to workplace reform, best practice and improved productivity. Further, that those agreements must provide for outcomes that are relevant and appropriate to the particular employer's operation and workers concerned.
- 5.3 The Union continues to be committed to the elimination of restrictive practices undermining the efficiency of the industry and is committed to structural efficiency principles such as broad-skilling and broadbanding within appropriate training and safety frameworks.
- 5.4 The Union will continue not to compel any employer to hire an individual nominated by the Union, but will play a positive and appropriate role in assisting members to find employment when the Union is aware of job vacancies.
- 5.5 The Union agrees with the industrial tribunals that length of service can be an important consideration in determining retrenchments. The Union accepts the principle that length of service should not necessarily be the exclusive consideration, but one of a range of factors considered including the skills and efficiency of workers, the required skills available within the existing workforce, and changes in the operational direction of the business.
- 5.6 The Union will not seek to impose arbitrary or automatic 'employee takeover' in cases where an employer has ceased business. The Union recognises that there are commercial factors that need due consideration in any particular circumstance. The Union will however continue to pursue for members alternative employment opportunities where they have been abandoned by their employer.
- 5.7 The Union undertakes that where an employer ceases business leaving outstanding entitlements owing to its workers it will not seek to compel any other person to pay the said entitlements, unless they are legally obliged to do so. The Union reserves its right to pursue legitimate claims to ensure that workers are paid for work done and outstanding entitlements.
- 5.8 The Union will not seek to flow on justifiable specific claims for one class of workers to another class of workers to which that benefit is not justifiable or appropriate.
- 5.9 The Union does not support and will not promote stoppages of work by workers where they are not affected by a particular issue or problem.
- 5.10 The Union recognises the right of any employer to transfer at any time its workers between any construction sites, subject to any relevant award, agreement or legislative provision.
- 5.11 The Union will not support the practice of 'one-in, all-in' in relation to overtime, but will continue to support the fair and non-discriminatory allocation of overtime.
- 5.12 The Union will not require that various specialist personnel be present and paid wherever overtime is worked, even though there is no useful or productive work for them to do and they are not required for health and safety reasons.
- 5.13 The Union will not require that workers receive a full day's pay following the completion of certain limited set tasks unless such arrangements are provided for by the relevant award or agreement.
- 5.14 The Union will ensure through agreement(s) and the application of award(s) that down time due to inclement weather is minimised and that members will cooperate with their employer in doing whatever can be done to continue productive work.
- 5.15 The Union does not support and will discourage the practice of banning work the weekend before a rostered day off (RDO).
- 5.16 The current award provision on RDOs provides for certain flexibilities. The Union will not unreasonably refuse to substitute RDOs in accordance with the award procedure. The Union agrees that further flexibilities, such as banking and staggering of RDOs, are an appropriate component for agreements reached between the Union and individual employers.
- 5.17 The Union will not impose restrictions on any business' right to sublet work. The Union reserves the right to advocate and pursue through restructuring the broadening of subcontract packages and compliance with legal requirements (i.e. no sham sub-contract arrangements).
- 5.18 The Union will not require any contractor, sub-contractor or employer to employ a non-working delegate on a construction site.
Undertakings of the Government
- 6.1 On the signing of this Deed, the Government will resume normal
relations with the Union. Priority will be given to the re-establishment
of the Industry Committee of the WorkCover Authority to ensure maximum
industry co-operation in addressing workplace safety.
- 6.2 On the signing of this Deed, the Government will not pursue de-registration proceedings against the Union, provided that the Union complies with the terms of this Deed.
- 6.3 The Government recognises that it is vital to the industry to ensure adequate numbers of apprentices and other skilled workers are employed and trained. The Government undertakes to consult with the Union on how best to ensure that the future skill needs of the industry are met.
- 6.4 The Government recognises that there are certain problems associated with 'security of payment'. On this basis, it will consult with the Union and other industry parties to develop appropriate mechanisms to safeguard workers' wages and entitlements.
- 6.5 The Government acknowledges the legitimate rights of unions in the construction industry and the right of union officers and members to conduct lawful activities free of victimisation.
Monitoring of this Deed
- 7.1 A Monitoring Committee (Committee) will be established to monitor
compliance with this Deed. This Committee will consist of two representatives
of` the government, one of the Labor Council of NSW, one of the National/NSW
Union, and an independent 'eminent person' agreed to by the parties to
this Deed. Committee procedures will be prepared by the parties to this
Deed in consultation with the 'eminent person'.
- 7.2 The purpose of the Committee is to enable the Government or the Union to raise any concerns with regard to possible noncompliance with the terms of this Deed or with the operation of the terms of the Deed with a view to resolving the issue.
- 7.3 The Committee will initially be established for a period of twelve (12) months to monitor the Deed, and will meet at least once every two (2) months during that period. If the Government or the Union has concerns with non-compliance, they are to be raised as soon as practical with the Monitoring Committee.
- 7.4 The Committee will be provided with administrative support, as required, from the NSW Department of Industrial Relations, Employment, Training and Further Education.
- 7.5 The Committee process should not be a substitute for industrial matters being dealt with in the ordinary course of events through the dispute settlement mechanisms in awards, agreements and industrial legislation.
In this Deed:
- 8.1 industrial action has the same meaning as defined in section 4(1)
of the Industrial Relations Act 1991 (NSW).
- 8.2 agreement(s) means registered or certified agreement(s) under the Industrial Relations Act 1991 (NSW) or the Industrial Relations Act 1988 (Cwth) as amended.
- 8.3 employer(s) means an employer(s) of workers in the construction industry in the State of New South Wales.
- 8.4 construction industry means the activities performed in the State of New South Wales in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures.
- 8.5 worker(s) means work performed by person(s) in the construction industry who:
- 8.5.1 come within the conditions of eligibility (Rule 2- Constitution)
of the Construction, Forestry, Mining and Energy Union, Building Unions
Division, an organisation registered under the Industrial Relations Act
. 1988 (Cwth); and/or
- 8.5.2 come within the conditions of eligibility (Rule 2 - Constitution) of the Building Workers Industrial Union of Australia, NSW Branch, an organisation registered under the Industrial Relations Act 1991 (NSW).
Annexure 2: CFMEU/BWIU Code of conduct
Code of conduct and behaviour for Officers of the CFMEU (BWIU Division) NSW Branch
The following Code of Conduct shall be applicable in respect of the duties, obligations and behaviour of officers of the union:
- 1 The requests and directives of the Executive Officers of the union
(Secretary, President, Assistant Secretary) must be implemented.
- 2 If a person has a difference with a request or directive as outlined in 1 above he/she may have the matter promptly reconsidered by the appropriate Executive Officer. If he/she is not satisfied the matter may be reconsidered by the Branch Management Committee. Such final reconsideration will not release the Officer from any obligation to comply with Clause 1 of this Code.
- 3 An Officer shall not work for any other person, body or corporation for profit or reward during their term of office or employment with the union without the approval of the Branch Management Committee, as provided in the Rules. Also no Officer shall receive any gift or consideration from any employer or supplier of materials in the industry. They are not to obtain building materials or products free of charge or at a rate less than that which would apply to the trade, ie trade discount.
- 4 No Officer shall assist or arrange for a member of his/her family to be employed by a building employer except by agreement with the State Secretary. No person is to use their position for individual advantage or gain.
- 5 No Officer engaged by the union shall converse in an abusive or derogatory manner towards any person towards whom he/she may come into contact, irrespective of provocation. Similarly, racist or sexist remarks are recognised as objectionable.
- 6 It is expected of officers to publicly defend other fellow officers including Branch Management Committee members and State Councillors from verbal criticism and personal attack.
- 7 It is required that agreed policies of the union will at all times be publicly promoted and upheld, irrespective of personal views.
- 8 All agreements entered into by the union must be adhered to and honoured.
- 9 No literature other than union and other agreed literature is to be distributed by officers of the union unless authorised by an Executive Officer.
- 10 All officers are required to be suitably attired and presented at all times.
- 11. The needs of members and the organisation must be properly and punctually serviced at 1 all times. Any requirements in respect of accountability must be adhered to. If an Officer is unable to attend work as required he/she must notify the appropriate Executive Officer and make the necessary arrangements for another Officer to attend any meetings, commission hearings etc that they had responsibility to attend during their period of absence.
- 12 It is recognised that excessive drinking and/or drug taking is incompatible with effective performance as a full time Officer of the union. Under no circumstance should any person drink alcohol etc during working hours unless it is at an authorised function activity.
- 13 No arbitrary fines or monetary penalties are to be imposed on any builder or subcontractor under any circumstance.
- 14 It is expected that Officers of the union shall assist in developing an environment free from sexual harassment and racial discrimination of any kind, implied or overt.
- 15 All Officers are responsible for the safe care and service of union property, eg vehicles etc.
Failure to comply with the above requirements will lead to appropriate
action being implemented in the interest of fellow Officers and the good
of the organisation.